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allowance of quarters, it is believed that such regulations are void and should not be accepted by the accounting officers in the adjudication of accounts involving disbursement of public funds.

"I am therefore of the opinion, and so decide, that paragraphs No. 1052 and No. 1060 of the Army Regulations of 1910, so far as they authorize the furnishing of fuel for the use of Army officers in excess of that actually necessary for the quarters they occupy, not exceeding the number of rooms to which they are entitled by law, are void, and that unless said paragraphs are amended by the administrative department so as to fix approximately the value of the heat actually necessary, it is the duty of the accounting officers to fix such allowance, regardless of the regulations in question.'


In said decision of September 23, 1913, it was said:

"It has been held repeatedly by this office that the act of March 2, 1907 (34 Stat., 1167), authorizes the furnishing at the expense of the United States of such heat only as is actually necessary to heat the quarters occupied by an officer, and that said act does not authorize the Secretary of War to prescribe an arbitrary amount to be paid in lieu of heat.

But with reference to the auditor's conclusion, that as a matter of fact the fuel allowance prescribed in said regulation are largely in excess of the quantities actually necessary for the authorized allowance of quarters, it was also said:

"Upon the evidence now before me I do not feel justified in accepting the auditor's conclusions of fact in this matter, but the subject has been brought to the attention of the Secretary of War and he is investigating the matter with a view to determining whether the quantities of fuel prescribed in paragraph 1060, A. R., 1910, do exceed the quantities actually necessary. Until the Secretary shall have had a reasonable time in which to determine this question of fact and to amend the regulation in question, if found necessary, the accounting officers will continue to assume that the quantities of fuel prescribed in said regulation do not exceed the quantities actually necessary and that the regulation is therefore in conformity with the law and valid."

The point submitted with reference to the payment of the fuel allowance of an officer on detached service in a foreign country was disposed of as follows:

"Under the recent amendment to paragraph 1052, A. R., 1910 (quoted in the auditor's decision, supra), authorizing the payment of the fuel allowance of an officer on detached service in a foreign country at the local rates at the place where he is serving, I understand that it has been the practice of said officers to compute the allowance at the local price of standard oak wood regardless of the kind of fuel actually used for heating the officer's quarters or of the fact that such wood is not commonly used as a fuel at the place where he is on duty. This practice is based upon an erroneous interpretation of the regulation. While the only fuel specified in paragraph 1060 is wood, yet the Secretary of War has fixed, by regulation and general orders, the equivalent of a cord of wood in the various other

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fuels; and the only reasonable interpretation of the amendment in question is to compute the allowance, in a case to which it applies, upon the equivalent of his wood allowance in the fuel actually used to heat his quarters at the local price of such fuel.

“The accounting officers in auditing vouchers for payment of heat allowances of officers on detached service in foreign countries will ascertain the kind of fuel actually used in heating the quarters occupied and the local price of such fuel at the time and place of its use, and will allow credits in accordance with the views herein expressed."

In so far as the question submitted was left undecided, pending your investigations and amendment of regulations, if desired, it is now before me, and your letter transmitting the report referred to must be regarded as indicating your continued approval of existing regulations and practices thereunder, and your conclusion that said report justifies them.

The paragraphs in question purport to authorize payment of fixel sums per month for the period from September 1 to April 30, according to latitude, the allowances for the zone between 36° and 433? north latitude being as follows: For 10 rooms, $32.50; for 9 rooms, $30; for 8 rooms, $27.50; for 7 rooms, $25; for 6 rooms, $22.50; for 5 rooms, $20; for 4 rooms, $17.50; for 3 rooms, $15; for 2 rooms, $12.50; for 1 room, $6.25. These sums represent the value of the quantity of hardwood prescribed in said regulations as the maximum allowance for the different quarters, respectively, at $1 per cord.

A part of the report of the Chief, Quartermaster Corps, is entirely irrelevant, as it is devoted to an attempt to show that the number of rooms fixed by the act of March 2, 1907 (34 Stat., 1169 and 1169), as the authorized allowance of quarters for officers of the various grades is inadequate. That question has been settled by competent authority, and with it we have nothing to do. If it were for discussion, it might be appropriate to inquire as to the extent to which the mandate of the law is being disregarded.

But a careful study of so much of the report as does tend to show upon what the allowances prescribed in paragraph 1060 were based has convinced me that said allowances were not based upon the quantities of fuel actually required to heat quarters at military posts consisting of the number of rooms which the law provides may be assigned to the officers of each grade, respectively. For instance, the quantity of fuel prescribed in the regulations as a major's authorized allowance is not the quantity which the War Department has, by experience, found necessary to heat a set of quarters consisting of 5 rooms (a major's authorized allowance of quarters), but is based upon the quantity of fuel required to heat the number of rooms a major is usually permitted to occupy at a military post. namely, from 9 to 16 rooms.

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37, 318

Table VIII of the report submitted (pp. 16 to 18) shows the actual consumption of coal at various posts (taking from one to four buildings at a post) in field officers' quarters for the period from September 1, 1911, to April 30, 1912, and the following averages are obtained: North of 43° N. lat. (17 posts), per bldg

69, 113 lbs. Between 43° and 36° N. lat. (29 posts), per bldg

61,541 South of 36° N. lat. (6 posts), per bldg

49, 010 Table IX of same report (pp. 18 to 21) contains like data with reference to line officers' quarters (captains and lieutenants), and the averages shown are as follows: North of 43° N. lat. (17 posts), per bldg

46, 659 lbs. Between 43° and 36° N. lat. (30 posts), per bldg

43, 959 South of 36° N. lat. (7 posts), per bldg

I have before me reports showing the number of rooms in each set of quarters at 15 different military posts in the United States, and from an examination of them I find that field officers' quarters average more than 10 rooms per set and that line officers' quarters (except bachelors' quarters) average more than 8 rooms per set.

The allowances prescribed in the regulations for the period from September 1 to April 30, north of 43° north latitude (stated in hard coal equivalents) are as follows:

For 2 rooms (20 Lt.), 43,336 lbs.; for 3 rooms (1st Lt.), 54,100 lbs.; for 4 rooms (Capt.), 63,464 lbs.; for 5 rooms (Maj.), 72,536 lbs.; for 6 rooms (Lt. Col.), 81,600 lbs.; for 7 rooms (Col.), 90,664 lbs.

A comparison of these figures with those given in Tables VIII and IX, supra, will show that the allowances prescribed in the regulations for line officers entitled to 2, 3, or 4 rooms exceed the quantities actually used to heat 8 rooms, and that the quantities prescribed as the allowances for field officers entitled to 5, 6, or 7 rooms exceed the quantities used to heat 10 or more rooms.

The fuel allowances prescribed in the regulations for 8 rooms (which appears to be the average number usually occupied by line officers at military posts) for the season from September 1 to April 30 as compared with the quantities used in such quarters as shown by Table IX, su pra, is as follows:

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It has also been observed in auditing heat vouchers of officers occupying quarters, other than public, heated by separate plant, that the entire quantities prescribed in the regulations for thé respective grades are seldom, if ever, used, even when the officers actually occupy and heat several more rooms than their authorized allowance.

In a recent case before this office there was involved the cost of moving from the premises formerly occupied by a naval officer a quantity of coal remaining from that drawn by him during the preceding fiscal year, within his allowance, and notwithstanding such coal had been used as was needed during two months of the next succeeding year (not heating months) there yet remained to be moved 19,900 pounds of coal.

But, reverting again to the report in question, I can not but note the peculiar division of the years and the fact that inferentially it requires four times as much fuel to supply the needs of an Army officer on the 1st day of September as is required on the day before.

Of course allowances of fuel can not be made to fit the needs of each day or week and possibly not accurately made as to each month, but common knowledge as well as common sense tells us that there is no justification for a “winter allowance” of fuel eight months in the year and a “summer allowance” four months in this latitude. When fuel is being furnished in kind this division of the year is not of particular consequence, for we may assume that an Army officer is not going to heat his house in September when he probably does not need any heat just for the sake of consuming the fuel, but when it comes to paying him for the fuel instead of furnishing it in kind the absurdity of the situation is apparent.

Why pay a man the hard cash as commutation of fuel, on the basis of a winter allowance, for eight months of the year when we know that in this latitude there are approximately three months of the eight in which he needs no heat at all! Much of that time nature gives us more than we care for.

And add to that the fact that, with slight modification, the same thing holds good in the southern zone (below 36° N. lat.) extending into the country where the fortunate may bask in the sunshine during the winter months and go fishing most of the time unhampered even by a coat. Commutation of fuel on the prescribed winter basis in the sunny South approaches a gratuity.

But, getting back once more to the report in question, I can not but revert to one of its peculiar statistical arguments.

Much time and labor has been wasted, I think I may say, in determining, from the statistics of the Department of Labor, the amount of average expenditure for fuel by civilians earning from $500 to $1,200 per year and deducing therefrom a conclusion as to the percentage of the earnings of the average wage earner which is expended for fuel, from which is deduced the conclusion that, on the basis of a comparison of incomes, the fuel allowance of a given


Army officer is in line with the expenditure for fuel of a mechanic or laboring man and is just about right, and this is said to be so " for exactly the same accommodations.” This wonderful theory must mean that the greater a man's income the more fuel is necessary to keep him warm even in “exactly the same accommodations." Putting the conclusion in even figures and carrying it a little further, on the percentage and comparative income theory, we find that if the President of the United States changed domiciles with a $750 a year mechanic it would take about $3,400 worth of fuel a year to keep the President warm in the same house in which the mechanic had kept comfortable on $34, a difference of a hundred fold in the quantity of heat necessary. These observations are simply for the purpose of demonstrating the value of the report submitted as a justification for the regulations in question.

The fuel allowance authorized by law (act of Mar. 2, 1907, 34 Stat., 1167) is only that actually necessary to heat the authorized allowance of quarters. And any regulation which attempts to give a greater allowance than that authorized by law is invalid and of no force or effect.

Whatever construction of any part of the law may be attempted or whatever may be attempted by regulation, the plain facts are that Congress has authorized for officers specific quarters, according to rank, with “the heat and light actually necessary for the authorized allowance of quarters” and the furnishing of quarters in excess of those authorized or of more fuel or light than is “ actually necessary for those quarters is the furnishing of more than is authorized by law, and when commutation is paid on an excessive basis it amounts to an unauthorized increase of compensation.

The accounting officers of the Treasury have no jurisdiction over the assignment of quarters and the issuing of fuel at military posts, but in the settlement of claims or accounts involving payments for heat for quarters other than public they must observe the plain provisions of the law. And since, in view of the facts herein stated, it can no longer be assumed that an officer occupying quarters other than public, not heated by a separate plant, actually and of necessity used the quantities prescribed in paragraph 1060, Army Regulations, 1910, for the number of rooms occupied and to which his rank entitled him, no allowance whatever can be made for heat in such cases in the absence of satisfactory evidence showing, at least approximately, the quantity of fuel “ actually necessary” to heat the quarters occupied.

And in the case of an officer occupying more rooms than his allowance as fixed by law in quarters other than public which are heated by a separate plant, allowance will be made for only such part of the entire amount of fuel used therefor as the number of rooms to which

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