PUBLIC PROPERTY: Real estate; title to reservations conveyed to the United States, without cost, for military posts.

Certain reservations were conveyed to the United States under acts of Congress providing that upon "transfer and conveyance to the United States of a good and sufficient title" to the premises, "without cost to the United States," military posts should be 66 established and located on said " lands. The deeds recited nominal considerations and purported to convey a fee simple title free and clear of all incumbrances, and the title was approved by the Attorney General. After the establishment and maintenance of the posts, for periods varying from 15 to 20 years, it was proposed to abandon them, and the question was raised as to whether the title of the United States to the lands so acquired was such as to permit of the sale of the same. Held, that in making the conveyances the grantors may be assumed to have understood that nothing less than a fee simple title, free and clear of all incumbrances, would be accepted by the Government; and that, such being the case, no court would reform the deeds by engrafting thereon, contrary to this understanding, limitations of the title to the purposes for which the property was conveyed.

Held further, that even if the facts stated be regarded as amounting to implied conditions, such conditions were fully satisfied, on the part of the United States, when the posts were established at the places specified, with no intention of the establishment being temporary. See Mead v. Ballard (7 Wall., 290); Harris v. Shaw (13 Ill., 463); Sumner v. Darnell (13 L. R. Á., 173); Newton v. Commissioners (100 U. S., 548); that there was nothing in the acts under which the posts were established to show an intention to bind the Government permanently to maintain military posts at these locations; and that as to such reservations, the title in fee is in the United States without any limitation which would prevent the sale or other disposition of the property by the United States when no longer required for military purposes.

(C. 29379, Mar. 6, 1912.)

PUBLIC PROPERTY: Title to real property; delivery of deed.

Where, a deed was executed and delivered to the United States, but not recorded, for the donation of a tract of 640 acres as a site for a military post at Santa Fe, N. Mex., and the bill for authorizing the acceptance of a site at that place was not passed by Congress, on the question being raised as to the course to pursue to restore the land to the grantors. Held, that in view of the provisions of section 3736, Revised Statutes, the deed was inoperative to pass any title to the Government, and that as it was not placed on record it would be sufficient to return it to the grantors.

(C. 1582, Feb. 17, 1912.)

SALE OF PUBLIC PERSONAL PROPERTY: Sale of articles of medical equipment to Red Cross.

The American National Red Cross having requested the privilege of purchasing certain articles of medical equipment, the property of the United States, from the Medical Department of the Army.

Held, that under Article IV, section 3, paragraph 2, of the Constitution, the Congress alone has the right to dispose of the public property, whether real or personal, and that therefore in the absence of authority from Congress the request of the American National Red Cross could not be granted. (See U. S. v. Nicoll, Fed. Cas. No. 15879; and 16 Op. Atty. Gen., p. 477.)

(C. 16453, May 28, 1912.)

DECISIONS OF THE COMPTROLLER OF THE TREASURY.

APPROPRIATIONS: Public buildings; cost of plumbing therein.

Sundry civil appropriation act of March 4, 1909 (35 Stat., 1004), for the fiscal year 1910 provides:

"Cavalry post, Hawaii Territory: for the construction of the officers' quarters, barracks, storehouses, etc., necessary for the accommodation of headquarters and two squadrons of cavalry, $200,000."

The sundry civil appropriation act for the fiscal year 1910 authorized contracts to be entered into for a greater amount than that appropriated for, but made no other changes in the conditions or terms of the appropriation.

The Army appropriation act of March 3, 1911 (36 Stat., 1051), for the fiscal year 1912, under the heading "Water and Sewers at Military Posts," provides:

For procuring and introducing water to buildings and premises at such military posts and stations as from their situation require it to be brought from a distance; for the purchase and repair of fire apparatus; for the disposal of sewage; for repairs to water and sewer systems and for hire of employees, $2,250,903.27."

Upon a request by the Secretary of War for a decision as to whether or not the appropriation for the construction of buildings at the cavalry post, Hawaii Territory, is available for the installation of plumbing fixtures therein to the exclusion of the use for the same purpose of the current appropriation for water and sewers at military posts. Held, that the cost of plumbing within said buildings should be paid from the appropriations made for the construction of the same and not from the appropriation for "water and sewer at military posts."

(18 Comp. Dec., 612, Feb. 12, 1912.)

ENLISTED MEN: Continuous service; purchase of discharge.

A private served three consecutive enlistments of three years each in the Army, and enlisted for the fourth, but purchased his discharge after serving less than half his term, and enlisted in the Marine Corps. Held, that the time served in the uncompleted enlistment period in the Army should not be computed in making up the fourth enlistment period, on which he entered as an enlisted man of the Marine Corps.

(18 Comp. Dec., 714, Mar. 20, 1912.)

93668-17-2

ENLISTED MEN: Six months' gratuity; death of beneficiary.

When a private in the Marine Corps designates his father as his beneficiary to receive the six months' pay under the provisions of the act of May 13, 1908 (35 Stat., 128), and makes no designation of an alternative beneficiary, and after the private's death his father dies before receiving the six months' pay gratuity, such pay can not be paid to the legal representatives of the beneficiary.

(18 Comp. Dec., 660, Feb. 28, 1912.)

ENLISTMENT IN MARINE CORPS: When it becomes effective.

A man who made application for enlistment in the Marine Corps on December 20, 1909, and successfully passed the physical examination the next day, but who was not accepted in the service and subjected to military authority and control until January 15, 1910, when he signed the contract of enlistment and was sworn in, did not enlist until the later date and is not entitled to pay and allowances of an enlisted man prior to that time.

(18 Comp. Dec., 604, Feb. 9, 1912.)

EXTRA-DUTY PAY: Service at the United States Military Academy.

Section 1287, Revised Statutes, and the act of March 3, 1885 (23 Stat., 359), provide for the payment of extra-duty pay to soldiers performing extra-duty service, and the appropriation for incidental expenses, Quartermaster's Department, provides for the payment of the same; but the act of March 2, 1907 (34 Stat., 1167), provides that: "Hereafter no part of the moneys appropriated for use of the Quartermaster's Department shall be used in payment of extra-duty pay for the Army service men in the Quartermaster's Department at West Point."

The Military Academy act of March 3, 1911 (36 Stat., 1025-27), contains appropriations for maintaining the children's school and for carrying on the development of the general plan for improvements to roads and grounds on the military reservation at West Point. Held, that enlisted men not belonging to the Army service detachment at West Point who are detailed and employed on extra duty under competent authority in connection with the maintenance of the children's. school or the improvements to roads and grounds on the military reservation at West Point, and otherwise coming within the laws and regulations relative to extra duty, are entitled, for such service, to the extra-duty pay provided by law, and the same should be paid from said appropriations for maintaining the children's school and for the improvements to roads and grounds.

(Decision of Asst. Comptroller L. P. Mitchell, June 5, 1912.)

LAND-GRANT RAILROADS: Michigan Central Railroad; computation of earnings.

The Michigan Central Railroad is a land-grant railroad between Lansing, Mich., and Mackinaw City, Mich., and the earnings on Government business over said distance or any part thereof are subject to the land-grant deduction required by law.

The earnings of the land-grant portion of a railroad used for Government business are to be determined on the basis of the original land-grant mileage in connection with the nonaided mileage used for

said service.

(18 Comp. Dec., 674, Mar. 6, 1912.)

OFFICERS OF THE ARMY: Selection of home on retirement.

There is no law or regulation which limits the selection of the home by any Army officer on retirement from active service to a place within the continental limits of the United States, and where an officer serving in the Philippine Islands is retired and selects his home in Germany, such officer is entitled to the mileage and actual expenses which the law gives in traveling to his home when he makes the journey under proper orders within a reasonable time after the date of retirement.

(18 Comp. Dec., 634, Feb. 26, 1912.)

PAY AND ALLOWANCES: Fuel allowances; use of by family of officer. During the entire period from September 1, 1910, to April 30, 1911, a lieutenant colonel of the Army was on duty at his permanent station in Alaska and regularly occupied two rooms assigned to him as quarters, which were heated by fuel issued by a quartermaster. At the officer's request and upon his certificate that he would use 2,000 pounds of bituminous coal and not use 10,870 pounds of bituminous coal per month during said period, there was issued to his family at Shrewsbury, N. J., 64,000 pounds of anthracite coal, for which the quartermaster paid the sum of $187.20. The auditor disallowed this item in the accounts of the acting quartermaster, and the latter appealed to the comptroller from the auditor's decision. Held, that when the quarters actually occupied by an Army officer are heated at the expense of the United States he is not entitled to have any additional fuel issued to himself or to his family at the expense of the United States, notwithstanding the fact that he may not have occupied the full number of rooms to which his rank entitled him, or that the quantity of fuel used to heat the rooms which he occupied as quarters may have been less than the quantity which the regulations prescribe as the maximum quantity for the number of rooms which he occupied. And held further, that when an officer on duty in Alaska occupies public quarters heated at his own expense, the quantity of fuel which, under the regulations, may be issued at the expense of the United States to his family can not exceed the quantity prescribed in the regulations for the number of rooms actually occupied as quarters by said officer.

(1s Comp. Dec., 592, Feb. 8, 1912.)

A rehearing was requested upon a certificate showing that the officer occupied his full allowance of six rooms, but the rehearing was denied upon the ground that all the rooms occupied had been heated at Government expense.

PAY OF ENLISTED MEN: Deductions of indebtedness due the United States from travel pay on discharge.

An enlisted man was brought back from absence without leave at an expense for himself and his guard of $30.15, which, with other amounts, made his indebtedness to the United States exceed the balance of pay due on his final discharge. Held, that an enlisted man's indebtedness to the United States on account of transportation furnished him on returning him to his station from absence without leave is not a proper charge against the soldier's travel pay due him on final discharge from the service.

(18 Comp. Dec., 621, Feb. 23, 1912.)

REENLISTMENT PAY: Computation of; extra-duty pay.

A soldier enlisted and was discharged from the service after serving the full term of his enlistment. For some time prior to his discharge he was employed on extra duty as a mechanic at the rate of 50 cents a day and was so employed until the day before his discharge, on which day, being Sunday, he rendered no extra-duty service and received no extra pay therefor. Held, following decision in 17 Comp. Dec., 828, that said extra-duty pay received by the soldier should not be included in computing the three months' pay for reenlistment within that period.

(Asst. Comptroller L. P. Mitchell, Jan. 2, 1912.)

TRANSPORTATION OF BAGGAGE ALLOWANCE: Change of station; horses not regarded as baggage.

Horses are not regarded as baggage or "baggage in excess of regulation change-of-station allowance" within the meaning of Army Regulations and the act of March 23, 1910 (36 Stat., 255), and where. an officer on changing station has had transported at public expense from his old to his new station all the horses for which he is legally entitled to forage, the Government has discharged its legal obligations with respect to the transportation of his horses.

Where an officer ships horses in excess of the number he is legally entitled to forage for, such horses should be transported at his own expense and on a commercial bill of lading and not on a Government bill of lading.

(18 Comp. Dec., 494, Jan. 2, 1912.)

OPINIONS OF THE ATTORNEY GENERAL.

CONTRACTS: Modifications of and payment of damages.

The Secretary of the Navy may insert in the contracts for vessels constructed under authority of the act of March 4, 1911 (36 Stat., 1265), a provision for making changes in said contracts and for determining the amount of increased or diminished compensation arising there from, whether such compensation be of the nature of liquidated or unliquidated damages.

(29 Op. Atty. Gen., 285, Dec. 21, 1911.)