on March 19, which was after the order was to take effect, and before the order of March 24, which suspended the former order and directed that laws providing disability pay in effect before March 1, 1913, should apply to injuries received after that date until further orders. In other words, it made or sought to make the later order retroactive and to render the first order void ab initio.

It is a general rule recognized by the courts that where rights have vested under a statute a repeal of that statute does not divest them. (Grey's Exr. v. M., 55 Ala., 387; Taylor v. W., 10 Cal., 90; Dixon v. D., 4 La., 188; In re S., 45 N. H., 593.)

It was said in Fletcher v. Peck (6 Cranch, 87, 135):

"When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law can not divest those rights."

In Pac. Mail S. S. Co. v. Joliffe (2 Wall., 450) it was said by the Supreme Court:

"When a right has arisen upon a contract or a transaction in the nature of a contract authorized by statute and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not effect it, or an action for its enforcement."

The effect of an Executive order authorized by statute can have no greater effect upon a vested right than a statute.

A regulation by the President can not have retroactive effect. (United States v. Davis, 132 U. S., 334.)

Following these decisions I conclude that Mr. Griffin's right to the benefits given by the Executive order of February 26, 1913, vested before the suspension of that order, and therefore the order of March 24 could not divest him of the rights vested.

I am not unmindful of the fact that under the circumstances of this case and amid the difficulties attending the applying of decisions somewhat conflicting, it may be questioned whether there was in this claimant, after injury and before the issuance of the second Executive order, a "vested right."

But, however that may be, there was in the claimant, under the law, assuming the injury was neither intentional on his part nor the result of intoxication, a right to compensation, the simple question being whether it was compensation to be adjusted under the statutes theretofore applicable or under the Executive order of February 26, 1913. It seems so plainly apparent from either view of the case that the claim is for adjustment under the Executive order last mentioned that further and detailed discussion is deemed unnecessary.

Your questions a, b, and c relate to the computation of the lumpsum payment that may be made to Griffin under sections 5 and 14 of the Executive order.

The injury from its nature is necessarily permanent, and, therefore, it will have to be assumed that he will be entitled to compensation for the remainder of his life, the duration of which is made determinable, under section 14 of the order, by the "American Table of Mortality."

The method provided in the Executive order for the determination of the amount of monthly compensation is not satisfactory because so far from a fixed rule. The only course open is to apply such rule as is given as fairly and impartially as may be done to work out proper results within the spirit of the law.

In the first place, it is to be noted that the first five days after injury are excluded from the computation.

Thereafter his "monthly pay " is the factor from which subtraction is to be made. This must be construed to mean the monthly pay he was receiving when injured, and if not actually paid by the month, it is to be determined as provided in section 13.

Assuming that for a time after injury, he was, by reason thereof, not able to work and therefore had no "earning capacity," his monthly pay" stands for that period without deduction and his "monthly compensation" would be at the rate of 50 per cent thereof,

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After this preliminary period of assumed inability to work, the law seems to assume that he will work, and when he does work the amount he earns must, in the absence of reason for other conclusion, be regarded as his earning capacity, and for the remainder of the first six-year period 50 per cent of the remainder, after deductions of this "earning capacity" per month from "monthly pay," would measure his monthly compensation. But it is to be observed that if he receives from his employer, or as a part of his wages any rent, board, lodging, or other advantage, they are to be taken into account at their estimated money value in determining his earnings; i. e., his earning capacity.

If he sees fit not to work when able to do so, the problem becomes more complex. I can only conclude that in that event his earning capacity must be determined, as nearly as may be, in the light of experience as to the ordinary earning capacity of a man so disabled, in connection with which his fitness for employment in lines other than that in which formerly employed should be considered and his earning capacity not limited to that line alone.

Subsequent to the six-year period the computation would differ only in that it is to be on the basis of not less than 25 nor more than 40 per cent, instead of 50 per cent.

The latitude as between 25 and 40 per cent can be regarded only as an attempt to confer a discretion to be exercised as the merits of each particular case may justify.

Compensation during the life of the Isthmian Canal Commission is to be by lump sum unless the chairman, within the discretion conferred, determine otherwise.

For the purpose of determining lump-sum payments, it will be necessary to determine the probabilities of life from the date when right to compensation began—that is, five days after disability.

Two-thirds of the amount of monthly compensation for this period will determine the amount of commutation.

It is noted that the claim filed, which is referred to a claim for compensation under the Executive order of February 26, was not filed within 60 days after injury.

There is a discretion to receive claims after 60 days, but, aside from that, I think the filing of the first claim should be regarded as controlling as to time. The fact that the claimant then misapprehended the situation as to the compensation statutes or the Executive order controlling settlement should not militate against him, for at the time of the filing of the first claim he indicated his intention to claim such compensation as might be due him and afterwards declined compensation under the acts theretofore applicable. His filing of a second claim did not deprive him of any rights he had under the first.

DAILY MAXIMUM ALLOWANCE FOR EXPENSES OF SUBSISTENCE.

Where the daily expense of subsistence is limited by law or competent regulation to a certain fixed sum per diem, and the law or regulation does not also fix the limits of the day for which such maximum is provided, the accounting officers, in computing daily expense of subsistence, will follow the rule laid down in 7 Comp. Dec., 338, that a day's expense of subsistence shall commence with breakfast and end with lodging for the night of the same day. (17 Comp. Dec., 799, and 19 Comp. Dec., 672, modified accordingly.)

The limits of a day for computing daily allowance of expense of subsistence may be defined by competent regulation adopting such rule as may be best adapted to the conditions of the service for which it is promulgated.

Comptroller Downey to the Attorney General, January 7, 1914:

I have received through Assistant Attorney General Adkins your letter of the 23d instant, as follows:

"Attention is invited to two decisions by former Comptroller Tracewell, relative to charges for night's lodging. One of those decisions is found on page 338, VII Comptroller. The syllabus of said decision is as follows:

"Ordinarily the cost of lodging incurred by an employee while traveling will be regarded as pertaining to the day in which the night for which the lodging was procured began.'

"That decision was made a part of the instructions to United States marshals, attorneys, clerks, and commissioners, dated April 1, 1904. Said instructions, with some slight amendments, of which due notice has been given, are still in force.

"The other decision is found at page 672, XIX Comptroller:

"Travel days begin at midnight of one day and end midnight of the succeeding day, and where the travel period extends over more than twenty-four hours, necessitating the taking of more than one day's meals and lodging, the traveler is entitled to the maximum allowed by regulation for each full day or fraction thereof, but where the travel status covers a period of twenty-four hours or less, or where only three meals and one lodging are actually taken by the traveler, only one maximum shall be allowed, regardless of the hour of entering upon or leaving the travel status.

"The court officials and the accounting officers have relied on said instructions, and a change in the rule would likely result in confusion and probable hardship through disallowances. The rule laid down in the seventh Comptroller is the simpler one, and the continuation thereof would not likely do any injustice to any one."

I am treating your letter as a request for reconsideration of the former rulings of this office, and will render decision accordingly.

The definition of a travel day found in 7 Comp. Dec., 338, was affirmed in 14 Comp. Dec., 90, and in a decision of December 11, 1908 (47 MS. Comp. Dec., 1376.)

Under date of April 17, 1911, the Comptroller of the Treasury, in a decision to the disbursing clerk of your department (17 Comp. Dec., 799, 800), defined a travel day as follows:

"It is well settled that the travel day commences at midnight of one day and ends at midnight on the succeeding day."

No authority in support of this conclusion is cited, nor do I find any prior Comptroller's decision to sustain it. The decision in 19 Comp. Dec., 672, cites and affirms this definition of travel day, and therefore does not announce a new rule in this respect. It would seem, however, that the practice under the old rule that the expense of subsistence for a travel day shall begin with breakfast and end with lodging had not been changed, notwithstanding the decision in 17 Comp. Dec., supra.

The calendar day begins at midnight and ends at the next succeeding midnight. The later decisions adopt this day as a basis for computing daily expense of subsistence. Day, as distinguished from night, begins at sunrise and ends at sunset, and this conception of the term underlies the earlier decisions, lodging being apportioned to the expenses of the preceding day. Charges for meals and lodging are generally adjusted to this conception of the term day. It is true that payment for lodging carries with it the privilege of occupancy of the lodging for such time during the day as the rules of the hotel or lodging house may provide; but it is also generally true that the

charge for lodging is the same whether it be used for the night only or for the day, or part of the day, also.

Another and perhaps a more logical rule for estimating daily expenses is to have the travel day begin with the commencement of travel and run accordingly throughout the travel status.

Where the daily expenses of subsistence is limited by law or competent regulation to a certain fixed maximum sum per diem, and the law or regulation does not also fix the limits of the day for which said maximum sum is provided, any one of the preceding rules for estimating daily expenses would meet the requirement of the law or regulation. For the sake of uniformity it is necessary that some one rule shall be adopted and enforced. Choice may be made by competent regulation adopting that rule which is best adapted to the conditions of the service for which it is promulgated.

In the absence of such regulation the accounting officers will follow the rule that the daily expense shall commence with the charge for breakfast and end with the charge for lodging, as being the one best adapted to convenience and economy in accounting. The practice of splitting the charge for lodging at midnight is cumbersome and complicates the examination and settlement of accounts, without any substantial compensating benefit to the traveler or to the Government. The rule that the travel day shall begin when travel commences would result in great inconvenience where expenses for the whole trip are not covered by one voucher.

Any rule adopted will work hardship to the traveler at times, but I see no reason why the rule now chosen will result in greater injustice than either of the other two.

The decision in 19 Comp. Dec., 672, is modified to the extent that hereafter the daily expense of subsistence shall commence with breakfast and end with lodging for the night of the same day, unless otherwise provided by law, or by competent regulation.

LIQUIDATION OF DAMAGES BY INFORMAL AGREEMENT.

The same measure of damages could not result from a failure to repair 1 tent as from a failure to repair 53 tents and a provision which purports so to provide will not be upheld as valid for that purpose. Comptroller Downey to Capt. L. W. Jordan, jr., Quartermaster Corps, United States Army, January 7, 1914:

I am in receipt of your letter of the 5th instant requesting my decision as to the propriety of paying a voucher therewith submitted in favor of M. G. Copeland & Co. for $113 ($137 less deduction of $24 as for "liquidated damages" for delay in completing certain work said firm had undertaken to do).