The auditor disallowed said payments because it appeared that during the period covered by the payments said officer was stationed with his regiment at Camp E. S. Otis, Canal Zone, and that under such circumstances the payments were improper. The auditor cited in his disallowance the decision of this office of February 8, 1912 (18 Comp. Dec., 592).

It appears from the papers of the case that Maj. Ferguson was stationed with his regiment at Camp E. S. Otis, Canal Zone, from November 18, 1911, to April 25, 1912, and occupied public quarters at such place. His family during said period lived at No. 1749 Broadway, San Francisco, Cal., occupying an apartment there rented for them by the officer. The appellant paid for the heat and light for the apartment so occupied by Maj. Ferguson's family covering the period from November 18, 1911, to January 31, 1912. Maj. Ferguson states that the public quarters occupied by him in the Canal Zone were not heated or lighted by the United States and that no part of his heat or light allowance was otherwise drawn by him. He states further that he took his meals at a hotel and the heat and light used by him in his quarters were paid for from his own private funds during the entire period from November 18, 1911, to April 25, 1912, when he left the Canal Zone.

The heat and light allowance is authorized by a provision in the Army appropriation act of March 2, 1907 (34 Stat., 1167), as follows:

"That hereafter the heat and light actually necessary for the authorized allowance of quarters for officers and enlisted men shall be furnished at the expense of the United States under such regulations as the Secretary of War may prescribe."

The Army Regulations, 1910, in force at the time provide: "1052. Each officer * * *

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*

entitled to and occupying public quarters will be furnished, at the expense of the United States, with the quantity of fuel set forth in the table of allowances, paragraph 1060.

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"1053. The Quartermaster's Department may issue or sell fuel in accordance with the preceding paragraph * to families of officers who are temporarily absent or who are on duty abroad or in Alaska, on a written certificate of the officer that the amount of his allowance covered by the certificate will not be otherwise drawn by him. * * *

66

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"1073. Each officer entitled to and occupying public quarters will be allowed, at the expense of the United States, for each room to which his rank entitles him 20,000 watt-hours of electric current a month, The Quartermaster's Department may furnish light, in accordance with the foregoing provisions of this paragraph, families of officers who are temporarily absent or who are on duty abroad or in Alaska, on a written certificate of the officer that the amount of his allowance covered by the certificate will not be otherwise drawn by him.

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to

The allowance of rooms as quarters for an officer of the grade of major in the Army is five. (See act Mar. 2, 1907, 37 Stat., 1168.) By paragraph 1060, Army Regulations, 1910, it is provided that a major occupying five rooms as quarters and stationed in the Tropics is entitled to 1 cords of wood per month the year around. One cord of average oak wood is fixed as the equivalent of 6,000 cubic feet of fuel gas. (See General Orders, No. 76, War Department, Apr. 5, 1907.)

Under date of May 4, 1912, Maj. Ferguson stated to the chief quartermaster, Western Division, San Francisco, that—

"The Government quarters occupied by me in the Canal Zone were not heated or lighted by the United States (see certificate of the post quartermaster of Camp E. S. Otis, Canal Zone, hereto attached), and no part of my fuel or light allowance was otherwise drawn by me. My food was cooked by the Isthmian Canal Commission Hotel, where I boarded, other heat was purchased by me, and my light was purchased and paid for by me, all for the entire period, November 18, 1911, to April 25, 1912, inclusive. I furnished your office with a written certificate that the amount of my allowance covered by the same would not be otherwise drawn by me. My status was Duty with regiment in the Canal Zone.""

The certificate of the post quartermaster at Camp E. S. Otis corroborates Maj. Ferguson's statement to the effect that the quarters occupied by him in the Canal Zone were not heated or lighted by the United States.

In the decision of this office of October 13, 1910 (55 MS. Comp. Dec., 200), it was held that where an officer on duty in the Philippines occupied quarters not heated at Government expense the fuel allowance to which he was entitled in the Philippines might be issued to his family at Athens, Ohio, but that if the quarters which he actually occupied in the Philippines were heated at Government expense no fuel could be issued to his family in the United States. This decision was subsequently overruled, but not until after the time covered by the above payments. (See 18 Comp. Dec., 592, dated Feb. 8, 1912; 63 MS. Comp. Dec., 407, dated Oct. 29, 1912; 65 id., 1094, dated May 27, 1913.)

It thus appears, therefore, that appellant made payments for the heat and light furnished the family of Maj. Ferguson under the regulations and decisions in force at the time, although it was afterwards decided that payments for heat and light supplied to an officer's family at a place other than his regular station were not authorized. Such decision should not operate to deny credit to the disbursing officer for payments made under decisions in force at the time he made the payments and upon which he was warranted in relying. This would not necessarily apply, however, to the officer who was the beneficiary of the payments now held to be unauthorized, and in this

case if, perchance, there should be anything due Maj. Ferguson in the future which the accounting officers of the Treasury are called upon to settle, they would be warranted in taking into consideration these unauthorized payments. Credit for a greater amount than he should have paid, however, can not be allowed the disbursing officer. Under the decisions he was not warranted in paying an allowance for heat greater than for five rooms, which was 1 cords of wood per month, or its equivalent of 9,000 cubic feet of gas per month. The vouchers show that he paid for heat for the 2 months and 13 days $37.79. He was warranted in paying $18.16. There was, therefore, an overpayment of $19.63 on account of heat. The payment for light was within the regulation allowance.

Upon a revision of the above-described account I find a difference in favor of appellant of $34.27, being $53.90 less $19.63, and a certificate of differences will issue accordingly.

Revision is limited to the items of which revision is requested and the right of revision as to remainder of the account is reserved.

TRANSPORTATION-PARTY RATE FOR LESS THAN TEN-DUTY OF OFFICER. A special rate for the transportation of a minimum number of 10 persons on a single ticket is not applicable for a less number, unless such a ticket is furnished or the request for the transportation indicates that said rate is to be applied.

The officer charged with the duty of procuring transportation for the Government should ascertain what rates are available, and issue the request indicating the rate that will best subserve the interests of the Government.

Comptroller Downey to Capt. E. W. Tanner, Quartermaster Corps, November 14, 1913:

I have received per indorsement of Chief, Quartermaster Corps, of November 7, 1913, your letter dated November 1, 1913, requesting a decision as to whether payment for the transportation of 9 men from Chattanooga, Tenn., to Atlanta, Ga., shall be made at the individual per capita rate of $3.80 or on the basis of the charge for 10 persons at the party rate of $2.75 per capita.

The service was rendered in compliance with transportation request 353094, issued by the quartermaster, Fort Oglethorpe, Ga., August 28, 1913, drawn on the Nashville, Chattanooga & St. Louis Railway Co. for the transportation of 9 men from Chattanooga, Tenn., to Atlanta, Ga., for which one ticket was issued for the entire party.

It appears that party fares are authorized by Nashville, Chattanooga & St. Louis Railway Circular D-1137 (I. C. C. No. A-541) for parties of 10 or more traveling together on one ticket, but no provision is made for a less number than 10.

The party fare between Chattanooga and Atlanta is $2.75, and the minimum authorized charge for a party is therefore $27.50.

The individual fare between said points is $3.80 and the charge for 9 persons at said rate is $34.20, which would undoubtedly be correct if 9 separate tickets were requested and furnished. If one ticket for 10 persons is issued the charge therefor is $27.50. If one ticket for 9 persons is issued, is it reasonable that the charge therefor should exceed the charge for 10, because the tariff does not specifically make provision for less than 10?

It is a self-evident principle that the greater includes the less and it is recognized in all forms of business that the charge for a less service should not exceed the charge for a greater. But are we justified in applying the principle to this case? If not, it may be advantageous to consider where the fault lies.

The request was for "first-class limited tickets" for 9 persons. On the face of the request attention is called to instructions on the back, in which it is said: "The agent will issue in exchange an ordinary passenger ticket at the lowest limited rate, unless the request contains other specific directions." The tariffs did not provide for party rates for less than 10 persons.

If the request had been for transportation for 10 people and, notwithstanding it had said tickets (in the plural), the agent had issued one ticket, there would be undoubted justification for construing the ticket as a party ticket and the service as party service and limiting payment accordingly. But since there was no such ticket on sale as a party ticket for 9 people and no such service recognized as a party service for 9 people, such a construction in this case seems unjustified.

It may be said that the Government ought not to be required to pay for the transportation of 9 persons more than the amount for which it could have transported 10. That is true beyond a doubt, but if the fault lies with some one else we are not justified in casting upon the railroad company the burden of safeguarding the Government's interests and reimbursing unjustifiable expenditures.

Had the request been for a party ticket for 10 persons the railroad company must have furnished it, could have made no objection because only 9 persons were in fact in the party, must have accepted it for the transportation of any number of persons not exceeding 10, and could have claimed therefor payment only at the party rate, $2.75 per capita (10), or $27.50 for the service.

It is my opinion that the Government must pay $3.80 per capita for 9 persons, $34.20, for this service, a contribution of $6.70 to carelessness and a flagrant disregard of the Government's interests.

Any party of 9 individuals contemplating such a journey at their own expense or any one of them charged with the duty of arranging for transportation for the party would have made inquiry, if not

already informed, as to the cheapest transportation available, and it is perfectly safe to assume that the 9 persons would have traveled on a 10-party ticket and saved the difference between its cost and that of individual transportation.

This particular case does not in itself involve much money, not enough hardly to justify the time taken on this opinion, but numbers of such cases can and do involve a considerable sum, and they are of all too frequent occurrence, leading to the conclusion that in many instances the safeguarding of the Government's interests and the minimizing of expense are matters of small concern. In transportation matters alone it is safe to say that expenditures would be curtailed very materially if any excess of expenditures over the necessities of the case could be checked against the officer responsible. This office is frequently called upon to invoke every tenable rule of construction to protect the Government against unnecessary expenditures when the remedy should have been applied at the source. In some cases, as in this one, I can not visit the sins of omission on the other party to the transaction and unfortunately can not take the amount of the unnecessary expenditure from the pocket from which it should come.

The officer who issued the request in this case, having to deal at times with transportation matters, should have known that party rates were available for 10 people, only 1 more than the number in the party in question, and if he did not know that a 10-party ticket would cost less than individual transportation for 9 people he should have made inquiry, as he no doubt would have done had it been a personal matter.

Payment for the transportation in question is authorized at the per capita rate of $3.80 for 9 persons.

EXTENDING CONTRACT TIME FOR REASONS NOT JUSTIFYING SUCH

EXTENSION.

Additional time in which to complete a contract can be granted only in event that causes of delay are such as will by the contract terms exempt the contractor from liablity for same.

Decision by Comptroller Downey, November 14, 1913:

Michael T. Barrier applied November 10, 1913, for a revision of the action of the Auditor for the Interior Department in disallowing (settlement No. 33767, dated Nov. 30, 1912, supplemented by settlement No. 37402, dated Nov. 11, 1913) his claim for $488, a balance alleged to be due him for work done under contract of December 12, 1911.