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ment for February of the annual salary of each position held by him for each day he actually holds said position. (11 Comp., Dec., 24; id., 48; id., 84.) This rule, when correctly applied, would answer all your questions but number two. By way of illustration, however, I will answer, specifically, your questions in the order stated.
1. You are authorized to pay Mr. Smolinski and Mr. Gerhard, respectively, twenty-three thirtieths of the monthly installment for February of the salaries of the positions held by them, respectively.
2. Mrs. Egerton and Mrs. Higley are paid the same salary and from the same appropriation made in a lump sum to be allotted to the bureaus by the Secretary of War, though they appear to have been transferred for administrative purposes from one bureau to another. Their service is continuous and does not in fact involve any new appointment or change in their positions. They should therefore each be paid thirteenthirtieths of the monthly installment for February of the salary of the positions held by them, respectively.
3. Each of the persons mentioned in this question have been transferred to or from the temporary to the regular roll. Such transfer involves a different appropriation, and service in each position would represent service in a distinct position from service in the other, and would involve a new appointment. The payments involved therefore represent payments for fractional parts of a month within the meaning of the act of April 28, 1904, supra.
Each should be paid twelve-thirtieths of the installment for February of the salary of the position held by them, respectively.
4. Mr. Loving should be paid twelve-thirtieths of the monthly installment for February of the salary of the position held by him.
The pay rolls inclosed were turned over to Mr. Smith at his request February 27, 1905.
PAYMENT BY BATTALION COMMISSARY OF COMMUTATION OF RATIONS OUT OF HIS PRIVATE FUNDS.
A battalion commissary in the Army is not entitled to reimbursement for commutation of rations voluntarily paid by him out of his private funds, notwithstanding the subsistence funds advanced to him for the payment of commuted rations were exhausted.
(Decision by Comptroller Tracewell, February 27, 1905.)
Walter C. Short appealed February 21, 1905, from the action of the Auditor for the War Department in settlement dated January 27, 1905.
He claimed reimbursement of $11.25 as second lieutenant and battalion commissary, Twenty-fifth U. S. Infantry, on account of amount paid out of his private funds to Walter P. Beltz, musician, Company G, Thirtieth U. S. Infantry, for commutation of rations while on furlough, May 17 to June 30, 1904.
The Auditor disallowed the claim because
"As the officer expended the amount paid the soldier from his own funds he can acquire no legal right to reimbursement, and is therefore not entitled to reimbursement under existing decisions."
It appears that as said Beltz was about to leave the service he applied to claimant as commissary for payment of amount due him for commutation of furlough rations, and that claimant, not having any subsistence funds on hand, paid the amount claimed and due ($11.25) out of his personal funds.
He now seeks to be reimbursed for said amount, and as evidence of payment has transmitted to this office Beltz's receipt therefor and a duplicate of his furlough certificate (original being lost). The Commissary-General of Subsistence, U. S. Army, recommends the reimbursement of claimant for amount so paid, as claimed by him.
In the absence of a subsistence fund no duty devolved upon claimant for the payment of said commutation; neither does there appear to have been any necessity for his so doing. Beltz could have presented his furlough to any other commissary for payment (A. R., 1901, par. 1419), or could have filed
a claim with the Auditor for the War Department for the amount of the commutation due him.
While the payment was no doubt for the convenience of the soldier, yet it was purely voluntary and unnecessary on the part of the commissary, and as such imposed upon the Government no legal obligation to reimburse him therefor. (4 Comp. Dec., 314; id., 409; 8 id., 584.)
As commissary, his right to be credited with funds disbursed ceased when he had expended the amount actually committed to him for disbursement. (See letter of Comptroller to Auditor for War Department, September 21, 1904.) The Auditor's action is affirmed.
COMPUTING PAYMENTS OF ANNUAL COMPENSATION FOR A FRACTIONAL PART OF A MONTH. A letter carrier of class 3, at $600 per annum, who was promoted on the thirteenth day of a 28-day month to class 2, at $800 per annum, is entitled for his services during said month to twelve-thirtieths of the monthly installment at $600 per annum, and to eighteen-thirtieths of the monthly installment at $800 per annum, as he was not appointed to a new position requiring a new appointment, but continued to hold the same position although at an increased salary.
(Comptroller Tracewell to C. E. Argersinger, postmaster, Fcb- • ruary 28, 1905.)
I have received your letter of the 25th instant, as follows:
"I have the honor to call your attention to two cases in which I am in doubt as to the application of rules for payment of salaries, as promulgated in your circular letter No. 46 of May 23, 1904.
"Case No. 1. David S. Meeker, a letter carrier at this office, served to February 12, 1905, as third-class carrier, at the rate of $600 per annum; February 13 he was promoted to second-class carrier, with pay at the rate of $800 per annum. For how many days in the month of February, 1905, should he be paid at the rate of $800 per annum?
"It seems to me that to pay him for but sixteen days, February 13-28, would practically nullify the statutes by paying him at the rate of $795.67 for one full year's service as a second-class carrier, whereas the statute entitles him to $800 for that period of service.
"Case No. 2. Le Grande Southworth, a railway post-office clerk of class 2, at $900 per annum, served in that grade on the New York and Chicago railway post-office to February 19, 1905, with pay office at Syracuse, N. Y., and was transferred on February 20 to service on Albany and Binghamton railway post-office, at same rate per annum, with pay office at Albany, N. Y. For how many days in the month of February, 1905, should he be paid for service on the Albany and Binghamton railway post-office, provided he serves the balance of the month?
"Being in continuous service as a railway post-office clerk of class 2, at $900 per annum, it would seem that he ought not be mulcted out of two days' pay ($5) by reason of his transference during the month of February to service on another line of railway post-office and change of pay office. If his pay office had not been changed, and he had served on the New York and Chicago railway post-office the full month of February at the same rate of pay, it is clear he would be entitled to a full month's salary for the service.
"It seems to me that the transfer to another line of railway post-office at the same rate of pay and change of his pay office during that month should not affect the amount of salary that he should receive for the full month's service, and that he ought to be paid at this office a full month's pay minus nineteen days paid at the Syracuse office, or eleven days' pay$27.50.
"If you will kindly inform me on these points, which so far as I can see, are not covered by the circular letter in question, I shall be extremely obliged, as I do not desire to over or under pay in these cases and complicate the work of the Auditor's division."
Section 2 of the act of August 2, 1882 (22 Stat., 185), amending the act of February 21, 1879 (20 Stat., 317), provides: "That section four of the act aforesaid be and the same is hereby amended so that it will read as follows:
SEC. 4. Appointments of letter carriers in cities having two or more classes shall be made to the class having the minimum rate of pay, and promotions from the lower grade in said cities shall be made to the next higher grade at the expiration of one year's service, on certificate of the postmaster to the efficiency and faithfulness of the candidate during the preceding year.""
This statute does not create a new position, but simply provides for an increase of the salary of the position of letter carrier for length of service by promotion to another class in the same service, in the same position. It does not require a new appointment independently of his original appointment.
Mr. Meeker holds but one position, though paid at different rates of pay for the first and last parts of the month. He is not paid for a fractional part of a month within the meaning of the act of April 28, 1904 (33 Stat., 513), although paid at two different rates during the month. His pay is increased by operation of law and not by any break or change in the service from one position to another, and it can not in any proper sense of the term be construed to be service for a fractional part of a month (11 Comp. Dec., 24).
He should be paid twelve-thirtieths of the monthly installment for February of his annual salary at six hundred ($600) dollars and eighteen-thirtieths of the monthly installment for February of his annual salary at eight hundred ($800) dollars. 2. In the case of Mr. Southworth there does not appear to have been any change in the position, only a change in the place of duty and place of payment. In such case he is not paid for a fractional part of a month within the meaning of the act of April 28, 1904 (33 Stat., 513), though paid part of his salary by one postmaster and part by another, but it is to be paid for the whole month's service as in one position. You took him up for pay purposes on February 20, 1905, and are authorized to pay him the balance of the monthly installment for February of his annual salary of $900, or eleven-thirtieths of one-twelfth of $900.
ROYALTIES FOR THE USE AND MANUFACTURE OF PATENTED ARTICLES.
The payment by the United States of a royalty for the right to manufacture and use patented articles after the expiration of the term of the patent is not authorized.
The War Department is not authorized to enter into a contract for the payment by the United States of a royalty for the prior use and manufacture of patented devices, such prior use being in the nature of a tort for which the United States is not liable.
(Comptroller Tracewell to the Secretary of War, February 28, 1905.)
By your reference, dated February 21, 1905, of a communication of the Chief or Ordnance dated February 17, 1905, you request my decision of the questions therein presented. Omitting paragraphs 5 and 6, the communication is as follows:
"1. I have the honor to inclose herewith proposed articles of agreement between the United States and Messrs. Von