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Held, that post exchanges being agencies of the Government, the duties imposed upon officers in the management of their affairs are as binding upon them as any other duty to which they may be assigned under competent military authority; that when the property or funds of an exchange are lost through mismanagement or neglect of such officers the least that can or should be exacted, in the public interests, is that they make good the loss; that this principle applies as well to members of an exchange council as to the exchange officer; and that in the instant case it was the duty of the Department, in the public interests, to direct the entry of stoppages against the pay of the several members of the exchange council and of the exchange officer, in equal sums, to cover the shortage.

(40-100, J. A. G., Feb. 24, 1915.)

RETIRED OFFICERS: Powers and duties when assigned to recruiting duty.

The question was presented whether a retired officer of the Army detailed to recruiting duty was authorized to administer oaths and execute depositions. Doubt arose because of the opinion of this office of November 14, 1914 (Bull. No. 52, W. D. 1914, p. 4), holding that a retired officer assigned to active duty and detailed as acting quartermaster and directed to take charge of the property and funds pertaining to the Quartermaster Corps at a post, could not be appointed summary court officer for the reason that the law authorizing the detail of retired officers on staff duty requires that it shall not involve "service with troops." The Act of April 23, 1904 (33 Stat. 264), authorizes the Secretary of War to assign retired officers of the Army, with their consent, "to active duty in recruiting" and, among other duties mentioned, to "staff duties not involving service with troops."

Held, that the statutory restriction that staff duty shall not involve service with troops does not apply to recruiting duty; that the language of the statute "active duty in recruiting" means that a retired officer so detailed shall perform the same duty as an officer on the active list so assigned, exercising the same power over and bearing the same relation to enlisted men at the recruiting station; that, being the only officer at a recruiting station, he constitutes the summary court-martial and is competent to administer oaths and execute depositions by virtue of the Act of March 2, 1913, which provides that "when but one officer is present with a command, he shall be the summary court-martial of that command and shall hear and determine cases brought before him."

(64-219.22, J. A. G., Feb. 12, 1915.)

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TRANSPORTATION: Excess shipments upon change of

station.

An officer whose freight allowance upon change of station was 5,100 pounds, in changing stations from Fort Riley, Kans., to Schofield Barracks, H. T., shipped an automobile from San Francisco weighing 2,000 pounds. At a later date he shipped a piano from Fort Riley, Kans., weighing 935 pounds, and still later household goods weighing 5,042 pounds. The total weight of the shipments from San Francisco to Honolulu was 7,977 pounds, and from Fort Riley to Honolulu, 5,977 pounds.

Held, that the officer was chargeable only for the excess shipments as actually made, or for 2,877 pounds from San Francisco, and 877 pounds from Fort Riley, together with the additional expense, if any, incurred by the Government by reason of the excess shipment from San Francisco.

(94-233, J. A. G., Feb. 2, 1915.)

DECISIONS OF THE COMPTROLLER OF THE TREASURY. [Digests prepared in the office of the Judge Advocate General.]

CONTRACTS: Adjustment of mistake made in final payment.

In making final payment to a contractor for engineer supplies there was erroneously deducted as liquidated damages for a supposed delay of three days in making deliveries the sum of $120. It was found later that contrary to the contract provisions no account had been taken of a delay of eight days caused by the Government.

Held, that upon the approval by the Chief of Engineers of the finding, "the voucher submitted covering the refund of such deduction may properly be made."

(Comp. Geo. E. Downey, Feb. 8, 1915.)

CONTRACTS: Deliveries of contract supplies after expiration of contract.

A contract was entered into for furnishing 106,000 pounds of bran at a military post during the fiscal year 1914. It contained the usual option in favor of the United States to increase or decrease the quantity to the extent of 20 per cent. at any time or times during the continuance of the contract, and that in case of the withdrawal of troops from the post the quantity to be delivered should be modified in accordance with the requirements of the Government. It was further provided that "in case of change, if the quantity required be increased or decreased, notice in writing of such change will be served upon the contractor by the contracting officer." There was delivered during the life of the contract only 54,960 pounds of bran, this being all that was called for by the Government, owing to a material reduction in the garrison. The Government gave the contractor no notice in writing of its intention to reduce the amount to be delivered under the contract, and the contractor for that reason claimed the right to deliver the remainder of the contract quantity at the contract price. Upon the question whether the Quartermaster Department was authorized to accept the bran after the contract had expired and after new contracts were awarded for bran at a lower price,

Held, that the contract expired under its own limitations on June 30, 1914; that after that date the Government could

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not, as a matter of right, order supplies under the contract any more than the contractor could be compelled to deliver supplies so ordered.

(Comp. Geo. E. Downey, Feb. 6, 1915.)

CONTRACTS: Open market purchases.

A contract was made for furnishing the Government Hospital for the Insane, Washington, D. C., with flour, "as may be required and ordered" during the period July 1, 1914, to October 31, 1914, at $4.40 per barrel. During July, August and September there were duly delivered on orders 796 barrels of flour. The hospital having ordered 500 barrels for October delivery, the contractors delivered 250 barrels and declined to deliver more, owing to the fact that the cost of wheat and flour had materially advanced, due to the European war and other causes, and because they considered the order in excess of the actual needs of the hospital for the period covered by the contract. The hospital thereupon purchased in the open market 250 barrels of a similar grade of flour, charging the excess cost, $387.25, against the contractors.

Held, that the contractors were obligated to furnish the quantity of flour that was ordered to supply the actual and reasonable needs of the hospital during the contract period; that it was for the hospital authorities to determine those needs; and that any determination of such needs which on its face did not appear to be unreasonable or capricious, or made without due regard for those interests of the contractor which general principles of law would protect and safeguard, would be accepted by the Comptroller as correct and binding upon the contractors; but that, inasmuch as it had been ascertained upon inquiry that during the contract period the hospital actually used only about 1,000 barrels of flour, and since the contractors had delivered 1,046 barrels, they had literally and in fact supplied all reasonable needs of the hospital for the full period covered by the contract, and that they were consequently not liable for the excess cost of the 250 barrels charged against them.

(Comp. Geo. E. Downey, Feb. 13, 1915.)

COURT-MARTIAL SENTENCE: When forfeiture of pay commences to run.

A soldier whose term of enlistment expired March 10, 1914, was retained to await the sentence of a general court

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martial, which was promulgated in orders dated March 14, 1914, as follows:

"To be confined at hard labor at such place as the reviewing authority may direct for six months, and to forfeit ten dollars per month for the same period."

The soldier was discharged the service March 20, 1914. He had pay due him from January 1, 1914, and the question was presented whether on his final statements his pay for January and February was subject to a deduction of $10 per month under the court-martial sentence.

Held, that the proper construction of the court-martial sentence meant that the execution of the forfeiture began with date of confinement, and that if the soldier entered upon his term of confinement under the sentence on March 14, 1914, the date of the promulgation of the sentence, the forfeiture of pay commenced on that date and ceased with his discharge on March 20, 1914, when his pay ceased.

(Comp. Geo. E. Downey, Dec. 31, 1914 and Feb. 6, 1915.) NOTE--See G. O. No. 70, W. D., 1914, p. 13, where the authorized form of sentence of forfeiture (in connection with a term of confinement) calls for the forfeiture to be "for a like period." Under this form of sentence, the period of forfeiture would begin, as prescribed in paragraph 976, Army Regulations, "with the period for which pay has accrued since last payment."

EXCHANGE: Payment of salaries abroad.

The military attaché at Peking, China, as acting quartermaster for the payment of his own accounts during the period from October 1, 1912, to June 30, 1914, charged against the United States and paid to himself the sum of $196.04 as the cost of exchange. For example, the officer stated his pay account for a particular month, including all allowances, at $417.50, which he computed as equivalent to $852.04, local currency, on the basis of the value of the Mexican dollar in China, as published by the Treasury Department for customs purposes, and thereupon obtained from the International Banking Corporation at Peking that amount of money in exchange for his draft drawn on the Assistant Treasurer at New York for $446.91; the difference between the latter sum and $417.50 being regarded as the cost of exchange.

Held, that the officer was only entitled to his pay as fixed by law in United States Currency; that his check in payment thereof drawn on funds to his official credit should have been for the amount thus due, and that any excess was unauthorized; that while under certain circumstances exchange may be paid in the transaction of the public business abroad, there is no authority for it in the payment of salaries which are fixed by law.

(Comp. Geo. E. Downey, Feb. 6, 1915.)

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