In the instant case, the evidence shows that the surety completed the unfinished work of its principal at the veterans' hospital at Oteen, N. C., to the satisfaction of the Government officers in charge thereof, with an expenditure of $21,092.77 in excess of the contract price; that said surety has paid $26,874.60 for labor and materials furnished the contractor for use on said work prior to the termination of the contract on October 13, 1927; that the outstanding unpaid claims of material men against the contractor for which said surety is liable amount to approximately $17,331.40; and that the surety has received funds from the sale of surplus materials amounting to $2,877.21. Thus, the surety's expenditures and liabilities in excess of payments received in connection with its completion of the Government work involved amount to approximately $62,421.56.

The rule is well established that a surety on the bond of a contractor for public work, who assumed to complete the work after default of the contractor, is entitled to be subrogated, so far as necessary to protect it from loss, to all the rights which the Government might have enforced against the contractor if it had declared the contract forfeited and completed the work itself. The surety's right of subrogation has been held to be superior to the claims of the contractor, or his assignees, for any balances due under the contract which are necessary to protect the surety from loss in the completion of the work. In this connection, see First National Bank, Seattle v. City Trust, Safe Deposit & Surety Co., Philadelphia, et al., 114 Fed. Rep. 529; Henningsen et al. v. United States Fidelity & Guaranty Co., etc., et al., 143 Fed. Rep. 810, affirmed by United States Supreme Court, 208 U. S. 404; Prairie State Bank v. United States, 164 U. S. 227; Hardaway & Prowell v. National Surety Company, 150 Fed. Rep. 465, 473, affirmed by the United States Supreme Court, 211 U. S. 552; Title Guaranty & Surety Company v. Dutcher et al., 203 Fed. Rep. 167; Fidelity & Deposit Company of Maryland v. Claiborne Parish School Board et al., 11 Fed. Rep. (2nd series) 404; and Fidelity & Deposit Company of Maryland v. Union State Bank of Minneapolis et al., 21 Fed. Rep. (2nd series)

102.

In this case, had the Government completed the work undertaken by the contractor at a cost exceeding the original contract price, it would have had the right to apply the balance due said contractor at the time of its default thereunder in reduction of such cost. Likewise, since the surety completed the work in the place of the contractor, it may be subrogated to the rights of the Government to make such application. The right of the surety to receive payment in such case, under the doctrine of subrogation, dates from the date of the performance bond and is paramount to the right of the contractor

or anyone claiming as his assignee, or as trustee, receiver, or administrator of his effects or estate. The fact that the Government entered into a separate agreement with said surety for the completion of the unfinished work of its principal, as in this case, would not affect said surety's right of subrogation to cover its losses. In this connection, see 26 Comp. Dec. 467; 8 Comp. Gen. 36; and id. 58.

In view of the facts and circumstances disclosed, as hereinabove set forth, payment of the said $25,131.65 found to be due under the original contract for work performed prior to default on said contract, should be made to the surety, the Continental Casualty Co. of Chicago, Ill., in partial reimbursement for expenditures made on claims for labor and materials used by the contractor in said construction work at the United States veterans' hospital at Oteen, N. C., and for which it was liable as surety on the performance bond.

Accordingly, there is certified as due the Continental Casualty Co. of Chicago, Ill., surety on the performance bond of the defaulting contractor, A. Clement Tobin, trading as the Tobin Construction Co., the sum of $25,131.65, and a check therefor will issue in due course.

The stop order on the check for $25,131.65 issued October 2, 1928, to the Tobin Construction Co., will be made permanent as no amount is due or payable to said company under its contract.

(A-25588)

CLASSIFICATION OF CIVILIAN EMPLOYEES-REALLOCATION OF

POSITIONS

If the administrative office finally approves or acquiesces in the action of the Personnel Classification Board in reallocating a position, the salary rate of the employee is for determination in the grade in which the position has been finally allocated. 7 Comp. Gen. 820, 825, distinguished. Where there is a difference of opinion as to the duties and responsibilities of a position between the employee on the one hand, and the administrative office together with the Personnel Classification Board on the other, the final determination by the latter must control in fixing the salary grade of the position.

Decision by Comptroller General McCarl, February 13, 1929:

Floyd W. Woolley has requested review of settlement 0232184 dated October 6, 1928, disallowing his claim for $225 alleged to have been lost in salary as the result of an unlawful reallocation downward of his position as administrative assistant (budget) in the United States Veterans' Bureau from grade CAF-8 to grade CAF-6, effective October 1, 1926.

Claimant is contending that the reallocation downward effective as of October 1, 1926, was made by the Personnel Classification Board on it own motion without any request by the administrative office

or the employee, citing as a basis for his claim 7 Comp. Gen. 820, 825. See also 8 Comp. Gen. 296; id. 301.

Under date of August 10, 1928, the Director of the Veterans' Bureau reported as follows:

1. August 10, 1925, the position of administrative assistant (budget) was allocated by the Personnel Classification Board to grade CAF-8, Mr. Lewis M. Churbuck being the incumbent.

2. The position became vacant February 16, 1926, by transfer of Mr. Churbuck to another position, on which date Mr. Woolley, the claimant, was assigned thereto.

3. Classification sheet showing Mr. Woolley's assignment vice Mr. Churbuck was forwarded to the Personnel Classification Board April 3, 1926.

4. The board did not take final action until October 11, 1926, at which time it reduced the grade of the position from grade CAF-8 to CAF-6, the bureau having requested grade 8 when the sheet was forwarded. On May 7, 1926, the board was advised by letter, copy of which is attached as part of Mr. Woolley's claim, stating that in its opinion the grade of this position should not be reduced.

5. October 26, 1926, Mr. Woolley submitted an appeal for reallocation of the position to grade CAF-8. The bureau, having reconsidered the whole matter and in view of the fact that it had been definitely determined that the travel originally contemplated as a part of the duties of the position would not be required, advised the board that in its opinion the position had been properly allocated to grade CAF-6, and therefore recommended disapproval of the appeal.

6. The appeal was disapproved by the board February 24, 1927.

There is also a report, dated September 6, 1928, from the chairman (alternate) of the Personnel Classification Board wherein it is stated as follows:

The statement of facts contained in the letter of the Director of the Veterans Bureau dated August 10, 1928, is correct. The position in question, upon a theoretical duties description, was allocated to CAF-8. Emphasis was laid upon the independent responsibility involved in the proper conduct of the work due to the plan to require the incumbent to spend about one-half of his time visiting field offices where he would give personal attention to methods of budget control, accounting, familiarize himself with local needs, assist in the preparation of field estimates of appropriations needed, and generally to act as liaison officer between certain field offices and the director's office.

The job did not develop in this manner at all, so that in fact neither Mr. Woolley nor Mr. Churbuck, his predecessor, ever performed all of the duties on which the position was allocated to grade CAF-8.

When it became apparent that the position did not involve the independent action contemplated originally, but was a tabulating and correspondence job, an allocation in accordance with the facts was made. This allocation, as stated by the director in his letter of August 10, 1928, was to grade CAF-6 and in the opinion of this board is correct.

The reports do not show whether the classification sheet forwarded to the Personnel Classification Board April 3, 1926 (par. 3 of the director's report), contained a changed description of duties or the same description appearing in the sheet describing the duties of the prior incumbent, Lewis M. Churbuck. If the former, there was in effect the creation of a new position the allocation of which was for action by the Personnel Classification Board, but if the latter, there was no action authorized or required by the board. That is to say, in the latter event, the promotion of an employee to an existing vacant position in a higher grade does not require any action by the

board. But, however that may have been in this case, it appears that the administrative office did finally approve, or acquiesce in, the action of the Personnel Classification Board in reducing the position from Grade CAF-8 to Grade CAF-6, effective October 1, 1926 (par. 5 of the director's report). See 8 Comp. Gen. 275, 276. Where the administrative office approves or acquiesces in the action of the board in allocating or reallocating a position, as in this case, the board's action is not then open to the objection noted in the decision of June 26, 1928, cited by the claimant.

The employee contends that the duties and responsibilities of the position to which he was promoted were the same as performed by the former incumbent; but, be that as it may, all questions of fact involving a proper description of duties and responsibilities of positions subject to the classification act are for consideration and determination among the employee concerned, the administrative office, and the Personnel Classification Board, and not by this office. Where there is a difference of opinion as to the duties and responsibilities of a position between the employee on the one hand, and the administrative office together with the Personnel Classification Board on the other, the final determination by the latter must control in fixing the salary grade of the position.

Upon review the disallowance of the claim is sustained.

(A-25738)

COMPENSATION-POSTAL EMPLOYEES-DISMISSAL FOR

INTOXICATION

Repeated intoxication on duty, while sufficient cause for dismissal of postal employees under the Postal Laws and Regulations, does not constitute such a violation of their oath of office or breach of their contract of employment as to cause a forfeiture of compensation due for periods prior to dismissal. Comptroller General McCarl to the Postmaster General, February 14, 1929: Consideration has been given to your letter of January 12, 1929, as follows:

Inviting attention to prior decisions of your office on the question of forfeiture of salary of employees discharged for cause, I have to request that you advise me whether a clerk removed from the Postal Service because of repeated cases of intoxication on duty should be held to have violated his oath of office and broken his contract with the Government so as to work a forfeiture of the salary due him at the time of his removal.

In determining whether compensation otherwise due for periods prior to dismissal from the service is forfeited, the test to be applied is whether the cause of dismissal is such as to have constituted a violation of the oath of office required of the employee and a breach of the contract of employment. See 7 Comp. Gen. 688; id. 757; decision in the Crawford case, March 3, 1927, A-15584, and decision

in the case of Louis A. Davis and John R. Jordan, November 13, 1928, A-24937.

The oath of office required of postal employees appears in section 32 of the Postal Laws and Regulations, and is as follows:

I (name of appointee), having been appointed (designate office or employment), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligat on freely and without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God,

I do further solemnly swear (or affirm) that I will faithfully perform all the duties required of me and abstain from everything forbidden by the laws in relation to the establishment of post offices and post roads within the United States; and that I will honestly and truly account for and pay over any money belonging to the said United States which may come into my possession or control; and I also further swear (or affirm) that I will support the Constitution of the United States. So help me God.

This oath is provided by section 1757, Revised Statutes, and section 391, Revised Statutes, as amended by the act of March 5, 1874, 18 Stat. 19.

The Postal Laws and Regulations forbid the use of intoxicating liquors to certain classes of postal employees while on duty; and while drinking to excess or intoxication at any time is stated as being sufficient cause for dismissal, there appears no such express prohibition against being intoxicated as would constitute a violation of the oath of office or a breach of the contract of employment. See section 681, as to city letter carriers; section 741 as to rural letter carriers; and section 1531 as to railway mail carriers. The question submitted is answered in the negative.

(A-25820)

TRANSPORTATION-ROUTES-DEPENDENTS OF ARMY OFFICERS AND ENLISTED MEN

Payment for commercial cost of transportation of dependents under section 12 of the act of June 10, 1922, 42 Stat. 631, is for computation by the shortest usually traveled route. As a practical matter, and in lieu of a better guide, in any case of available water or combination of water and rail routes, the routing used for mileage as established by the Official Table of Distances will be used in the settlement of accounts.

Comptroller General McCarl to the Secretary of War, February 14, 1929:

There has recently come to attention in the audit War Department Circular No. 12, dated March 7, 1928, paragraph 5-1 of which provides:

Under decision of the Comptroller General of the United States, dated December 6, 1927, (7 Comp. Gen. 365), dependents are only entitled to transportation routing by the shortest usually traveled route. This is interpreted by the War Department to mean via the most economical usually-traveled commercial all-rail route where available, or via the most economical usually