I sincerely hope that the decision under reference means that reimbursement on account of losses sustained in connection with the allowances for rent may be made. An early reply clarifying the matter will be appreciated.

Executive Order No. 6657A of March 27, 1934, as amended, quoted in the decision to you of October 5, 1934, makes no distinction between periods for which losses may be computed for salary and periods when losses are to be computed upon payments of allowances. In neither case does the statute authorize payment for any period, except "while in service in foreign countries", and the Executive order defines that term as follows:

1. The words in the act "while in service in foreign countries", for the purpose of these regulations, shall be understood to mean (a) while employed in or on assignment or detail to a post of duty in a foreign country, (b) while en route through a foreign country or on a foreign vessel to or from such post, (c) while, during such assignment or detail abroad, on leave of absence with pay in a foreign country, (d) while traveling in foreign countries under official orders, or (e) while attached to and serving on board United States vessels stationed in foreign waters for not less than 30 consecutive days.

Having thus excluded losses during periods of leave when not spent in a foreign country, it necessarily follows that under the Executive order reimbursement is not authorized for losses due to the payment of rental allowances accruing while the employee is on leave of absence in the United States, notwithstanding that such allowances are confined to cases where the employee maintains his rented quarters in the foreign country during such leave.

The question presented is answered accordingly.

(A-41644)

TRANSPORTATION ACCOUNTS REOPENING

ACQUIESCENCE

OF

SETTLEMENTS

Where a carrier's bills for passenger transportation, stated on the basis of commercial rates, are paid on the basis of net land-grant rates, a protest directed to the question of the status of the travelers as "troops of the United States" is without effect as rebutting the presumption of acquiescence in the correctness of the payments otherwise, and accordingly, where, after a lapse of time greater than the period prescribed by the statute of limitations for filing suit in the Court of Claims, the carrier seeks a further allowance, based not on the status of the travelers but on the contention that the amount deducted for land grant was excessive, the settlements will not be reopened.

Decision by Comptroller General McCarl, October 30, 1934:

The Pullman Company has filed several supplemental bills claiming the respective amounts indicated below in connection with settlements stated by this office making deduction for land grant from the Pullman surcharge for the transportation of guards and prisoners for the Navy Department between Chicago, Ill., and Augusta, Ga., on various dates in 1924, 1925, and 1926. The settlements are listed as follows:

The carrier originally presented its bills on the basis of commercial rates without deduction for land grant. The original bills also covered travel of other guards and prisoners between various other points, in addition to those traveling between Chicago and Augusta. The settlements made deduction for land grant where applicable to the charges for the transportation of the guards and prisoners, whether traveling between Chicago and Augusta or between other points. The settlements were made in 1925 and 1926, the last being under date of December 21, 1926. The carrier then presented supplemental bills claiming the total amounts deducted by the settlements, said supplemental bills bearing the same number as the original bills but with the suffix "S-A", e. g., supplemental bill 1410-S-A. These supplemental bills bore the following notation of protest:

This bill represents the amounts disallowed by the accounting officers of the Government from the Pullman Company's original bill, bearing the same serial number (without the letter affix) as this supplementary bill, rendered for the following classes of transportation, the amounts paid on such original bill being the charges accruing for transportation of "Troops of the United States' under the land-grant acts, which have been accepted under protest by The Pullman Company on behalf of the carriers for which it acts as agent and in part payment only for the services rendered, this supplemental bill representing the additional amounts to which The Pullman Company claims it is entitled in payment for the services rendered.

GUARDS & PRISONERS.

It was evident that this protest was directed to the status of guards and prisoners as troops of the United States, as evidenced also by the fact that the supplemental bills claimed the difference between the net charges as allowed and the charges applicable at commercial rates without any deduction for land grant. These supplemental bills were considered as serving notice of protest and were filed with the settlements to which they pertained as requiring no further action by this office. In connection with the supplemental bill pertaining to settlement no. 10518, the carrier was advised in letter of April 20, 1925, that said supplemental bill would be so filed without further action by this office.

The status of military guards and prisoners as troops of the United States was determined in Illinois Central Railroad Co. v. United States,

62 Ct. Cls. 61, and in Louisville & Nashville Railroad Co. v. United States, 62 Ct. Cls. 154. See also Southern Pacific Co. v. United States, 72 Ct. Cls. 273.

Following the filing of the supplemental bills referred to above, which appears to have been done within a period of from 3 to 6 months from the dates of the settlements to which they pertain, no further action appears to have been taken by the carrier in seeking a further allowance with respect to the transportation of these guards and prisoners until by letters of April 5, 1933, it transmitted to this office further supplemental bills bearing the same numbers as the original bills but each number having a suffix thereto of "S-B" e. g., supplemental bill 1410-S-B, in which the amounts sought apply only with respect to the guards and prisoners transported between Chicago and Augusta and are stated to represent the difference between the amounts deducted for land grant by the settlements with respect to these persons and the amounts which the carrier now urges should have been deducted. The basis for the reduced amounts claimed in the more recent set of supplemental bills is said to be that the Pullman rates applicable to the service rendered are not applicable via the route via which the land-grant deduction of said 17.37 percent used in the settlements was determined and that the deduction properly applicable for land grant via routes via which the Pullman rates apply is 2.768 percent.

As indicated above, the first set of supplemental bills filed in connection with these settlements was addressed to the matter of the status of the travelers as troops of the United States. The second set of supplemental bills is addressed only to the matter of the correctness of the amount of land grant deducted. In other words, there appears an abandonment of the contention regarding the status of the travelers as troops of the United States and the seeking of an additional allowance on the basis of the land-grant rates claimed to be properly applicable. A somewhat similar situation was involved in Northern Pacific Railway Co. v. United States, 72 Ct. Cls. 563, where, with respect to the payment at land-grant rates on certain bills in which charges had been claimed at full commercial rates, a protest was filed addressed apparently to the contention that the property transported was not property of the United States. In the judicial proceedings the carrier abandoned its contention concerning the ownership of the property but sought an additional allowance on the basis that its equalization agreement did not apply to the shipment. The court determined that in such circumstances the effect of the protest was lost and that the presumption of the carrier's acquiescence in the applicability of its equalization agreement, otherwise indicated, could not be rebutted by a protest directed to the matter of ownership. Moreover, in the instant matter it is to be

noted that the second set of supplemental bills were not presented for consideration until more than 6 years after the dates of the service involved or for that matter until more than 6 years after the dates of the settlements concerned. Recovery in the Court of Claims on such items would therefore be barred by the statute of limitations contained in section 156 of the act of March 3, 1911, 36 Stat. 1139. See, in this connection, Southern Pacific Co. v. United States, 67 Ct. Cls. 414 (certiorari denied, 280 U. S. 567) and Chicago & Northwestern Railway Co. v. United States, 68 Ct. Cls. 524.

Accordingly, the carrier having apparently acquiesced in the settlements, insofar as the method of determining the amount of land grant deductible is concerned, for a period greater than that prescribed in the statute of limitations, such settlements may not be reopened as requested.

(A-58273)

APPOINTMENTS FARM CREDIT ADMINISTRATION-DELEGATION OF AUTHORITY-OATHS

The authorization given the President to reorganize the Government departments and services did not authorize granting to a reorganized establishment or to the head thereof any authority in excess of that previously exercised by the services transferred thereto or their respective heads. Where a discretion is vested by statute in the head of a department or service, said discretion may not be delegated to or exercised by any other officer or employee except such a one as may be specifically authorized by statute to act in the place of the head, as for instance, an assistant secretary of a department.

Under the terms of section 169, Revised Statutes, the Governor of the Farm Credit Administration may not delegate to a subordinate the power of appointment of departmental employees, but under the terms of said Revised Statutes as amended by the act of June 26, 1930 (46 Stat. 817), the Governor of the Farm Credit Administration may delegate to a subordinate the power of appointment of all field employees. Consequently, as the appointment of departmental employees is required by the head of the independent establishment, oaths of office are required of all departmental employees upon all changes in positions, but as the appointment of field employees may be made by a subordinate, the requirement for oaths of office by field employees is a matter to be controlled by administrative regulation.

Comptroller General McCarl to the Governor, Farm Credit Administration, November 1, 1934:

Consideration has been given to your letter of October 17, 1934, as follows:

I have received your letter of October 2, 1934 (A-56298, A-50400), relative to the refusal of your Audit Division to certify for payment compensation claimed by Paul F. Broderick, visé clerk, $1,620.00 a year, and Ruth D. White, junior clerk, $1,440.00 a year, both employees of the Emergency Crop and Feed Loan Office, Washington, D. C., from May 10 to 14, 1934, inclusive, the appointment of these employees having been approved by the administrative assistant of the Farm Credit Administration on May 10.

The action taken by the administrative assistant in these cases was in accordance with the notice contained in my letter to you of November 25,

1933, a copy attached, advising you of the creation of the position of administrative assistant and of the fact that formal authority had been given to the occupant of that position, by me, to perform certain duties, among which was the approval of requests for allocations, appointments, termination of appointments, and other personnel papers. This delegation of authority was made under the provisions of paragraph 12 of Executive Order No. 6084, dated March 27, 1933, creating the Farm Credit Administration. As stated in my letter to you of September 1, 1934, these particular duties were delegated in the belief that section 12 of the Executive order issued under sections 401 to 403, title IV, part 2 of the Legislative Appropriation Act for 1933, as amended by the act of March 3, 1933, had the same legal effect as though its provisions had originated in the Congress and had become law by subsequent approval of the President. This interpretation of section 12 of the Executive order was in accordance with its clear intent, namely, to give to the Governor of the Farm Credit Administration the broadest authority to delegate any duties imposed upon him, without exception. Your concurrence in this interpretation appeared to be confirmed by the nonreceipt of any notice of exception to my letter to you of November 25, 1933, until the recent final determination contained in your letter of October 2.

Your letter of August 19, 1933 (A-50400), notified this Office that authorizations for the payment of travel expense upon change of official station must be signed by the Governor, and that the authority to approve such payments could not be delegated to a subordinate because there was involved the exercise of a discretion vested in the head of the Farm Credit Administration by the act of March 3, 1933, which by its terms granted this general authority to the heads of departments or establishments. The Farm Credit Administration noted particularly the following paragraph of this letter:

"There is nothing in this provision, or otherwise in the provisions of the Economy Act relating to reorganization, which authorizes the President to vest in the head of a new agency the power to delegate to a subordinate a discretion vested in the head of the agency by virtue of the provisions of a general statute applicable to the heads of all departments and establishments of the Government."

This Office did not understand that your decision of August 19, 1933, would also apply to prohibit the delegation of the power to make appointments because it seemed clear this power was not vested in the Governor by any general statute. The power to appoint given to the Federal Farm Board by section 4 of the act of June 15, 1929 (Agricultural Marketing Act), was transferred to the Governor of the Farm Credit Administration by paragraphs 2 and 3 of Executive Order No. 6084. In this connection it should be noted that by the terms of the Executive order the name of the Federal Farm Board was changed to the Farm Credit Administration, and that the title of "Chairman of the Federal Farm Board" was changed to "Governor of the Farm Credit Administration."

66

As stated in my letter to you dated September 1, 1934, and in the second paragraph of this letter, it seemed clear that all the provisions of the Executive order have the same status, as far as specific legislative approval is concerned, as they would have had if they had originated with the Congress and had become law with the subsequent approval of the President. It seemed clear, therefore, that section 12 of the order, granting to the Governor the power to delegate any and all" duties vested in him, gave specific sanction to the delegation of the power to appoint given to him by specific rather than by general statute. In view of the foregoing, your letter of August 9, 1934, referring to section 169 of the Revised Statutes as the source of the Governor's power to appoint, was most unexpected, particularly in view of the fact that the United States Supreme Court in Burnap v. U. S. (252 U. S. 512) defined the term "head of a department", as used in that section, to mean the Secretary in charge of a great division of the Executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet, and stated specifically that the term does not include heads of bureaus or lesser divisions.

Immediate steps are being taken to have all appointments which the Governor of the Farm Credit Administration is authorized to make, in the Washington office and in the field offices engaged in emergency crop, feed, and drought-loan work, made by the Governor or, in the event that he is absent from his office on account of illness or other cause, by the person serving as Acting Governor.