and Pay Clerk Cave. In these cases the surcharge of 50 per cent over and above the rent paid by canal employees was paid.

It is stated by appellant that in none of the cases were quarters, furnished without payment being made therefor by the officers concerned, and that in none of the cases have claims been made for commutation except when rental was paid.

There has been no evidence submitted to the accounting officers as to the amounts paid by the officers for the quarters occupied by them, either to the Panama Canal authorities or to the Panama Canal employees to whom the quarters were regularly assigned by the Panama Canal; but this is immaterial to the question here under consideration, as under no circumstances can an officer of the Army be permitted to rent Government quarters-that is to say, quarters owned, leased, or controlled by the Government-and claim commutation of quarters for the same time.

The quarters occupied by said officers were owned by the United States and controlled by the Panama Canal. It is known to this office as a fact that for some of the period in question the Panama Canal employees whose quarters the officers occupied paid no rental to the Panama Canal therefor, but were assigned to the quarters rent free. Under such circumstances it is not understood why rent should have been paid for such quarters by the Army officers to the Panama Canal; and in the case of payment to the employees themselves, it would seem that the payments inured to the benefit of the employees rather than to the Panama Canal.

Upon the facts and evidence appearing, the action of the auditor must be, and is, affirmed. It may be that in the case of Maj. Clayton, especially, he is justly entitled to commutation for a part of the time for which same is disallowed-namely, the period he occupied quarters in the Tivoli Hotel-and it is suggested that upon a refundment by him of the amount disallowed in accounts of appellant he will have the right to make a claim upon the Auditor for the War Department for whatever amount he thinks is justly due him under the law, at the same time furnishing to the auditor the evidence necessary to support his claim.

What is true in this latter respect as to Maj. Clayton is likewise true of every other officer. They should each be required to refund the amounts disallowed on their account, after which they will be at liberty to present their claims, with the necessary evidence, to the auditor for settlement of what, if anything, is justly due them under the law. All the essential facts are not shown in the papers now before this office.

The auditor's action is affirmed

MILEAGE.

While the act of August 29, 1916, authorizes the payment of mileage to field clerks of the Quartermaster Corps, United States Army, for official travel, yet Congress has made no appropriation from which such mileage may be paid.

Comptroller Warwick to the Secretary of War, September 15, 1916:

By your reference of the 11th instant of a letter of the Quartermaster General of the Army my decision is requested as to what appropriation, if any, is available for the payment of mileage of field clerks of the Quartermaster Corps of the Army created by the act of August 29, 1916 (Public, No. 242, p. 8), making appropriation for the support of the Army for the fiscal year 1917, as follows:

"Hereafter not to exceed two hundred clerks, Quartermaster Corps, who shall have had twelve years of service, at least three years of which shall have been on detached duty away from permanent station, or on duty beyond the continental limits of the United States, or both, shall be known as field clerks, Quartermaster Corps, and shall receive the same allowances, except retirement, as heretofore allowed by law to pay clerks, Quartermaster Corps, and shall be subject to the rules and articles of war."

The laws governing payment of mileage to officers of the Army are contained in the acts of June 12, 1906 (34 Stat., 246), and May 11, 1908 (35 Stat., 114).

Mileage has been held, both by the courts and by the accounting officers, to be an allowance. (See United States v. Landers, 92 U. S., 77; Sherburne v. United States, 16 Ct. Cls., 496; 6 Comp. Dec., 45; 12 id., 97.)

The act of August 24, 1912 (37 Stat., 575), provides:

"That hereafter Army paymasters' clerks and the expert accountant, of the Inspector General's Department, shall receive mileage at the same rates and under the same conditions as is provided by law for officers of the Army:

* * *99

Said act, in section 3, page 592, also provides:

"The noncommissioned officers now known as post quartermaster sergeants and post commissary sergeants shall hereafter be known as quartermaster sergeants; the Army paymaster's clerks shall be known as pay clerks, and each of said noncommissioned officers and pay clerks shall continue to have the pay, allowances, rights, and privileges now allowed him by law:

*

The act of August 29, 1916 (Public, No. 242, p. 11), making appropriations for the support of the Army for the fiscal year 1917, provides for mileage as follows:

"For mileage to commissioned officers, contract surgeons, and expert accountant, Inspector General's Department, when authorized by law, $712,500."

The prior appropriation (act of Mar. 4, 1915, 38 Stat., 1062, 1069), for the support of the Army, contained a provision for mileage to pay clerks of the Army.

The situation seems to be this: Congress has created a force of field clerks in the Quartermaster Corps of the Army, and has provided that said clerks, when traveling under orders entitling them thereto, shall be entitled to mileage, but it has made no appropriation for the payment of their mileage. It is a case of failure to appropriate or provide money for something specifically authorized by law. I think it is clear that the appropriation for the transportation of the Army and its supplies in the Army appropriation act of August 29, 1916, for the fiscal year 1917 (p. 16) makes no provision for the payment of mileage.

Answering your question specifically, I will say that I know of no appropriation for the present fiscal year which is available for the payment of mileage to field clerks of the Quartermaster Corps.

CONSTRUCTIVE SERVICE, ARMY.

A commissioned officer of the Army who formerly served as an Army pay clerk is not entitled to credit, for purposes of longevity pay, for five years' constructive service, to which credit he had been entitled while serving as a pay clerk. (22 Comp. Dec., 542, distinguished.)

Comptroller Warwick to Capt. P. L. Smith, Quartermaster Corps, United States Army, September 19, 1916:

I have your letter of the 13th instant, submitting a voucher in favor of Second Lieut. O. E. Beezley, Quartermaster Corps, United States Army, for difference in base pay and pay for over five years' service from June 3, 1916, to August 31, 1916, amounting to $41.56, and requesting my decision whether same is properly payable under the law. You state that your doubt is whether a second lieutenant is entitled to count constructive service already acquired by him for purpose of longevity pay as a commissioned officer.

It appears that Lieut. Beezley was appointed an Army paymaster's clerk on November 9, 1911, and was on date of appointment credited with five years' constructive service for purposes of computing his pay, in accordance with the provisions of the act of March 3, 1911 (36 Stat., 1044).

Lieut. Beezley was commissioned second lieutenant in the Quartermaster Corps of the Army under a provision in section 9 of the act of June 3, 1916 (Public, No. 85), reading as follows:

"The Quartermaster Corps shall consist of . . . the pay clerks now in active service, who shall hereafter have the rank, pay, and allowances of a second lieutenant, and the President is hereby authorized to appoint and commission them, by and with the advice and

consent of the Senate, second lieutenants in the Quartermaster Corps, United States Army."

As a pay clerk and so long as he continued one, Lieut. Beezley had the benefit of five years' constructive service for the purpose of computing his pay. It mattered not that his service as pay clerk was or was not continuous. (22 Comp. Dec., 542.)

As a commissioned officer of the Army, his right to count time served for longevity purposes is governed by the laws relating to commissioned officers. There is no law which gives commissioned officers of the Army the benefit of constructive service for longevity pay purposes. They can only have the benefit of actual service in the Army or Navy, or both, in computing their pay. By the acts of February 24, 1881 (21 Stat., 346), and June 30, 1882 (22 Stat., 117), it is provided that:

"Actual time of service in the Army or Navy, or both, shall be allowed all officers in computing their pay."

In the case of Morton v. United States (112 U. S., 1), the question was whether service of a cadet at the military academy at West Point was a part of an officer's "actual time of service in the Army " within the meaning of the above provision of the acts of 1881 and 1882, and it was held that it was.

In the case of Watson v. United States (130 U. S., 80), the Supreme Court went further and held that the words "for every five years he may have served in the Army of the United States," as used in the act of July 5, 1838 (5 Stat., 256), meant the same kind of service as the words "actual time of service in the Army," as used in the acts of 1881 and 1882, and that therefore service as a cadet was to be regarded as actual time of service in the Army. (See 14 Comp. Dec., 795.)

The only service that Lieut. Beezley could carry forward for the purpose of computing his pay as a commissioned officer of the Army was his actual service as a pay clerk, which was from and after November 9, 1911, and under this view he will not enter his second longevity period until November 9, 1916.

This decision is not contrary to the decision in 22 Comp. Dec., 542. That decision presented an entirely different state of facts.

PAYMENTS UNDER ANNUAL CONTRACTS.

Where, under a coal contract for a particular fiscal year, a contractor had the legal right to deliver the coal at any time within a specified period after the date of approval of the contract, but did not do so, and the Government orders the full amount of the coal a short time before the expiration of the fiscal year, delivery being made in the succeeding fiscal year, payment must be made at the rate specified in said contract and not at a higher rate provided in the coal contract with the same party for the succeeding fiscal year.

Comptroller Warwick to the Secretary of Commerce, September 20, 1916:

I have your letter of the 7th instant requesting decision as to the proper basis upon which to make settlement with the Nottingham & Wrenn Co. for 200 tons of coal delivered early in July, 1916, to the lighthouse depot at Washington, N. C., under the following circumstances:

By advertisement dated May 1, 1915, the lighthouse inspector at Baltimore, Md., requested proposals for furnishing certain lighthouse depots with "anthracite and bituminous coal during fiscal year ending June 30, 1916."

By proposal dated May 27, 1915, the Nottingham & Wrenn Co. proposed, in accordance with said advertisement, "to furnish and deliver as specified, at the prices set opposite each item," the supplies included in an attached schedule, all of which formed a part of said proposal, one item of which schedule being as follows:

"10. 200 tons bituminous coal delivered in one lot, within 20 days, in shed at the Lighthouse Depot at Washington, North Carolina, $3.79 per ton, $758."

Attached specifications provided that the coal was to be delivered as specified in schedule, and was to be of specified quality, etc. Another provision of the specifications was that under the contract to be effected a greater or less quantity "not to exceed 50 per cent of any item in this schedule " might be ordered as required.

Proposal was duly accepted and by contract dated July 1, 1915, subject, however, to the approval of the Secretary of Commerce, which approval was given on July 10, 1915, the Nottingham & Wrenn Co. formally undertook to furnish the coal in question, together with other items not here in question, all in accordance with the advertisement, specifications, etc., above referred to.

Under said contract no order was placed with the contractor for delivery of coal at Washington, N. C., until June 21, 1916, at which time it was directed to deliver the full contract quantity of 200 tons.

In the meantime proposals had been invited for furnishing coal for the succeeding fiscal year and award had been made on or about the last of June, 1916, to the same company for furnishing a like quantity and kind of coal during the succeeding year 1917 at a price, however, of $4.27 per ton, instead of $3.79 per ton, as during the preceding fiscal year.

The order of June 21, above referred to, was received by the contractor on or about June 22 and no question or complaint was raised at that time. By letter of July 10, 1916, however, the contractor returned the order in question, suggesting, inasmuch as under the terms of the contract in force during the year 1916 it was allowed 20 days in which to make delivery, and as the order of June 21, 1916,