the current market prices," as the difference in price between the shoes manufactured by the Federal penitentiary and the private manufacturer may be due to a difference in quality of the shoes. But in any event, the act of February 11, 1924, makes it obligatory upon the various departments of the Government to purchase the shoes manufactured in the penitentiary at Leavenworth "until the supply therein produced is exhausted before purchasing elsewhere." There is no authority to purchase shoes elsewhere when the supply of shoes at the Federal penitentiary is not exhausted, even though shoes may be obtained elsewhere at a lower price than from the penitentiary. It is equally obligatory that the shoes manufactured at the Federal penitentiary be sold "at the current market prices" and the price is one for adjustment between the purchasing agency and the Attorney General who is authorized under section 2 of the act to determine the current market prices.

It may be that the penitentiary can not produce shoes to meet the requirements of all of the inmates of the home. The disabilities and infirmities of some of the inmates of the home may require special shoes such as can not be manufactured at the penitentiary, and in such cases shoes for such inmates may be purchased elsewhere. However, there should accompany to this office for filing with the agreement, a clear showing of the reasons why the particular shoes are required and why they could not be obtained from the penitentiary.

Answering your question specifically, you are advised that where shoes can be purchased at the Federal penitentiary meeting the requirements of the National Home for Disabled Volunteer Soldiers, such shoes may not be purchased elsewhere. Where shoes can not be purchased at the penitentiary meeting the requirements of the home due to infirmities or disability of the inmates for whom they are intended, or due to the exhaustion of the supply at the penitentiary, a clear showing in this regard must accompany the contract for the purchase of such shoes elsewhere.

The requirements herein with respect to the purchase of shoes are equally applicable to the purchase of brooms and brushes.

(A-25662)

PROPERTY, PRIVATE-LOST OR DESTROYED IN THE FOREST

SERVICE

Under a contract providing for reimbursement for loss of animals Injured or killed during the period of h re to the Forest Service, but not specifically providing for their loss due to straying or theft, or for the loss of equipment due to fire, there is no legal liability on the part of the Government, in the absence of a showing of fault or negligence, to reimburse the owner for the loss of a horse that strayed away or for the loss of one-half set of harness that was destroyed by fire while in storage.

Reimbursement is not authorized, under the provisions of the act of March 4, 1913, 37 Stat. 843, of the appraised value of a horse and one-half set of harness which were lost while in the possession of the Forest Service under a contract of hire, for the reason that the horse and harness were not lost or destroyed "while being used for necessary fire fighting, trail, or official business," as specified by the statute.

Decision by Comptroller General McCarl, February 21, 1929:

Review has been requested of settlement No. 0219932, dated May 26, 1928, disallowing the claim of C. T. Beach for $56.50 representing the appraised value of a horse and one-half set of harness which were lost while in the possession of the Forest Service under contract of hire dated July 1, 1927.

The facts with respect to the loss of the horse, as reported by the senior forest ranger on November 8, 1927, appear to be as follows:

The horse was led from Flat Creek Ranger Station over the Brook Trail to Box Canyon Ranger Station (a distance of 32 miles) by packer, Delbert Brown, in company with Elmer B. Williams, patrolman, and Frank Crabtree, fireman, who were to be engaged primarily on fire-protection work. They were to use time not needed on actual protection work in rebuilding the fence surrounding Box Canyon Ranger Station.

It was impossible to use this horse continuously. To return the horse to its owner (32 miles) between periods of nonuse could not be done. It was hired on a monthly basis; the Government had the privilege of using it every day or could have returned it after any length of period of hire.

The fence surrounding the Box Canyon Ranger Station was broken down by heavy snow. Many of the wires were broken between posts, and posts settled so they projected ten inches to three feet above the earth. The only way the horse could be confined was to block passages of ingress and egress to Box Canyon Ranger Station. This was done across Brook Cabin Trail over which the horse entered. The supposition was that since the horse had never been over the trail leading from Box Canyon to Taylor Burn, it would not attempt to leave by this route. No effort was made to block this trail. This was the trail over which the horse passed when it strayed.

The horse would have been used July 4th had it not been a holiday when no work was performed by employees of the service, and would have been used July 5th had it not strayed. The official use of the horse on July 3 was the cause of the horse being in this locality on July 4th and straying on the night of July 4th.

Due to an oversight in not placing an obstruction across the trail leading from Box Canyon to Taylor Burn, the horse strayed. However, in the hills, it is the custom to block a trail only in the direction from which the horse came, and that usually is sufficient. Consequently, it is felt no blame should be attached to the employees, as they observed all usual precautions followed by anyone.

On November 18, 1927, the senior forest ranger reported with respect to the loss of the harness as follows:

The harness was hired because, at the time of hire (July 1, 1927) there was no Government harness available. It would have been necessary to have bought a collar to fit the horse; hence, the harness and collar were hired. The harness was used July 2nd and 3rd on C. T. Beach's horse while hauling fence posts and material to be used in the construction of a fence enclosing Box Canyon Ranger Station.

Box Canyon is located 32 miles from Flat Creek Ranger Station. Trips between the two points are infrequent. After the horse was lost, during the evening of July 4, 1927, we had no further use for the harness. The first trip the packer made, which was August 15th, after the horse was lost, he brought

the harness to Flat Creek Ranger Station August 16, and stored it in the barn, arriving at Flat Creek at 6 p. m.

As stated above, Box Canyon is 32 miles from Flat Creek, and between July 5 and August 15, no one made a trip in there, and there was no opportunity to return the harness to Flat Creek prior to that time.

Box Canyon is occupied during the fire season by a fireman and patrolman, who were to rebuild the fence as they had opportunity. It is a two-day trip from Box Canyon to Oakridge and return, and these men would have had no opportunity to get away for that length of time to return the harness after the horse was lost; neither would they have had any way of returning it except by packing it on their backs 32 miles.

The harness would have been returned to the owner August 17th, had it not been destroyed by fire on the night of August 16th.

The contract of hire dated July 1, 1927, provides:

The foregoing animals are furnished by the undersigned in accordance with Regulation A-4 of the National Forest Manual.

Liability for animals injured or killed during the period of hire is assumed by the Forest Service. The Forest Service will not compensate the owner for death occurring through disease or old age, or injury or death due to negligence by him.

Reinbursement for animals injured or killed will be based upon consideration of the appraised value and any other factors which may be germane.

Decisions as to reimbursement under this contract and the amount thereof will be made by the district forester.

Animals furnished under this contract must be serviceable and in healthy condition.

This contract may be terminated at any time by the Forester or his authorized representative.

The act of March 4, 1913, 37 Stat. 843, provides:

That hereafter the Secretary of Agriculture is authorized to reimburse owners of horses, vehicles, and other equipment lost, damaged, or destroyed while being used for necessary fire fighting, trail, or official business, such reimbursement to be made from any available funds in the appropriation to which the hire of such equipment is properly chargeable.

The involved contract provides for reimbursement of animals injured or killed during the period of hire but does not specifically provide for loss of animals due to straying or theft, or for loss of equipment due to fire while in storage. Furthermore, the horse and harness were hired for a valuable consideration, thus creating a bailment for mutual benefit, and the loss was without fault or negligence on the part of the Government; that is to say the Government exercised the same care and diligence in the protection of the property that a reasonably prudent person would exercise in the protection of his own under like circumstances. Therefore, considering the matter on the basis of the contract of hire, there is no legal liability on the part of the Government to reimburse the owner for the loss.

Reimbursement is not authorized under the provision in the act of March 4, 1913, supra, for the reason that the horse and harness were not lost or destroyed "while being used for necessary fire fighting, trail, or official business" as specified by the statute. 5 Comp. Gen. 326; 7 id. 304. Therefore, there is no authority of law for reimbursement of the value of either the horse or the harness.

Accordingly, the settlement of May 26, 1928, is sustained.

(A-25719)

LEAVES OF ABSENCE-NAVY-YARD EMPLOYEES

The decision of July 24, 1924, 4 Comp. Gen. 104, did not change the rule theretofore existing (see 25 Comp. Dec. 128) with respect to the rate of pay of navy-yard employees where leave with pay surrendered in the second service year is substituted for leave taken without pay in the first service year. The rule is that such pay is to be computed at the rate current when the leave was taken, that is, the period of actual absence in the first service year.

Decision by Comptroller General McCarl, February 25, 1929:

In connection with the settlement of the accounts of Capt. E. D. Ryan (SC), United States Navy, for the month of March, 1928, there is before this office for consideration the question of the rate at which employees of navy yards should be paid for a period of leave without pay taken in the first service year, where they work an equivalent length of time in the second service year, and surrender accrued leave they otherwise would have been entitled to take in the second service year.

The act of August 29, 1916, 39 Stat. 617, provides:

That each and every employee of the navy yards, gun factories, naval stations, and arsenals of the United States Government is hereby granted thirty days' leave of absence each year, without forfeiture of pay during such leave: Provided further, That it shall be lawful to allow pro rata leave only to those serving twelve consecutive months or more: And provided further, That in all cases the heads of divisions shall have discretion as to the time when the leave can best be allowed: And provided further, That not more than thirty days' leave with pay shall be allowed any such employee in one year: Provided further, That this provision shall not be construed to deprive employees of any sick leave or legal holidays to which they may now be entitled under existing law.

In construing the similar provisions of an earlier statute (act of February 1, 1901, 31 Stat. 746) it was held in decision of January 16, 1906, 12 Comp. Dec. 398, quoting the syllabus:

Employees of navy yards whom the Government desires to work and who do work at a time when they are entitled to leave of absence with pay may be regarded while so working as making up time lost in the same year by absence with permission without pay, and for each day they so surrender their right to leave of absence with pay may be allowed pay for a day theretofore absent by permission without pay.

In decision of September 22, 1916, 23 Comp. Dec. 192, 196, it was stated:

It is concluded that it was not the intent by the insertion of the proviso in the act of August 29, 1916 "that no more than 30 days' leave with pay shall be allowed any such employee in one year"-to preclude the granting in the second service year of the 30 days' leave earned in the first service year, in addition to the granting in the second service year of the pro rata leave earned in that year, thus depriving employees of any leave for the first service year, but rather to limit the leave granted for any service year to 30 days.

In decision of November 2, 1916, 23 Comp. Dec. 277, it was held, quoting the syllabus:

Employees of navy yards and stations who are granted leave without pay during their first service year may be allowed pay for such leave in lieu of leave with pay due them in the second service year.

The rates at which employees are entitled to be paid when leave with pay in the second service year is surrendered in substitution for time absent on leave without pay during the first service year were held by decision of August 7, 1918, 25 Comp. Dec. 128, to be the compensation rates in effect at the time the leave without pay was taken, for the reason that the allowance of pay for such leave is in the nature of a reimbursement of the pay lost when the leave without pay was taken.

There should be little question as to the soundness of this rule. Suppose an employee's rate of pay was $5 a day in 1927, his first service year, and $6 a day in 1928, and that he took 30 days' leave without pay in 1927, thereby losing $150. In 1928 he may be absent 60 days and be paid $360 therefor, or he may be absent only 30 days and surrender the other 30 days' leave and substitute it for the leave without pay taken in 1927. In the latter event he is paid at $6 a day for the full time served in 1928, including the 30 days of absence on leave, and in addition the $150 which he lost in 1927. That is, he is actually paid at the 1928 rate of $6 a day or $180 for the 30 days he works in 1928, when he might have been absent, and in addition is paid the $150 for the 30 days lost in 1927, which is now made up by working the 30 days in 1928 when he might have been absent. To pay him at the rate of $6 a day or $180 for making up the 1927 time in 1928, in addition to the $180 which he gets for working such 30 days in 1928, would be to pay him more for the two years' service than he would have received if he had not been absent in 1927 and had been absent on leave with pay 60 days in 1928. Fundamentally, it is merely a matter of pay being allowed for a period of absence for which leave had not accrued at the time but which later accrued and was surrendered to cover the former absence.

In decision of July 24, 1924, 4 Comp. Gen. 104, the former rule as to the appropriations chargeable in such cases was modified so as to authorize charging the appropriation current in the second service year when the leave with pay accruing for the first service year might have been taken, whether it was actually taken at that time or was surrendered in substitution for leave without pay taken in the first service year. Such decision of July 24, 1924, was addressed primarily to the question of appropriations and was not intended to change, and did not change, the rule theretofore existing with respect to the rate of pay allowable for leave taken without pay in the first service year where an equal amount of leave is surrendered in the second service year. It was stated in the decision that the rule as to leave with pay is that such pay is to be computed at the rate current when the leave is taken. That is, the proper rate of pay is that in effect during the actual period of absence, regardless of whether such absence is in the first or second service year. While it may be that a different conclu