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occupied was paid to the end of the current month, so that on the 31st of March, 1905, all the rooms were then occupied under a monthly rental terminating on the last day of the month. On the 1st day of April, 1905, the monthly rent for all the rooms amounted to $770. On April 14 the Commission gave written notice to the Evening Star Newspaper Company that a certain portion of the space would be vacated on April 17; on April 20 it gave written notice that the remaining rooms then occupied by the Commission in the Evening Star Building would be vacated, and on April 23 gave written notice that the rooms were vacated. On April 27 the keys of all the rooms formerly occupied by the Commission in the Evening Star Building were delivered to the Evening Star Newspaper Company. Said company has presented a bill for rent for the month of April, amounting to $770, and also a bill for the month of May, in the same amount, and claims that under section 1219 of the Code of the District of Columbia it is entitled to rent as stated in its bills. In view of the decision of your office, reported in 7 Comp. Dec., 342, the Commission does not feel justified in paying the claim as presented without your decision upon the matter.
"I inclose copies of the correspondence, and other papers, with the request that they be returned with your reply.
There was no written contract executed by the parties, but the written proposal by the manager of the Evening Star Newspaper Company, and the report of the committee of the Isthmian Canal Commission, appointed to investigate and report as to said rental, when read together, show that the estate created was to be from month to month.
Section 1035 of the act of March 3, 1901 (31 Stat., 1352), entitled "An act to establish a code of law for the District of Columbia," provides:
"Estates from month to month and so forth. An estate may be from month to month or from quarter to quarter, or, as otherwise expressed, it may be by the month or by the quarter, if so expressed in writing."
Section 1219 of the same act (p. 1382) provides:
"Notice to quit. A tenancy from month to month or from quarter to quarter may be terminated by a thirty days' notice in writing from the landlord to the tenant to quit, or by such a notice from the tenant to the landlord of his intention to quit, said notice to expire, in either case, on the day of the month from which such tenancy commenced to run.
In connection with these sections of the District code the contract provided that thirty days' notice of an intention to
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terminate the tenancy should be given, said notice to expire, under the occupancy shown, on the first day of any month.
It is well settled that when the Government goes in to the real-estate market to acquire property by lease, with no statutory restrictions upon its agents, it is bound by the law of landlord and tenant. (Bostwick v. United States, 94 U. S., 53; Morgan et al. v. United States, 14 Ct. Cl., 319; Semmes V. United States, 14 Ct. Cl., 493; Spofford v. United States, 32 Ct. Cl., 452; Smoot v. United States, 38 Ct. Cl., 418.)
There were no restrictions which prevented the Isthmian Canal Commission from renting the leased premises for April and May, 1905, or which would have rendered inoperative a clause in the lease requiring them to give thirty days' notice before the end of any month of an intention to quit.
Under section 1219, supra, June 1, 1905, was the first day on which the tenancy could be lawfully terminated (Spofford v. United States, 32 Ct. Cl., 459), and the Government is liable for the rent for April and May, 1905, unless the acceptance of the keys on April 27, 1905, amounted to an acceptance of the surrender of the leased premises as of that date.
On April 14, 1905, the manager of the Evening Star Newspaper Company was notified that on April 17, 1905, the Commission would vacate the second floor annex, entire third floor, and rooms 500, 508, 509, 510, and 511. On April 15, 1905, the manager for said company notified the Isthmian Canal Commission that under the District code thirty days' notice in writing was required before said Commission could terminate said tenancy.
This was equivalent to a distinct declaration to refuse an acceptance of the surrender of said premises prior to the time that said tenancy might be lawfully terminated by said notice.
Subsequently, however, the premises were all vacated, and on April 27, 1905, all the keys surrendered and accepted without any declaration at that time that further rent would be claimed or that the premises would be held for the use of, or rented for the benefit of, the Isthmian Canal Commission. A bill for rent for the entire month of April was at once presented, and upon being asked if it had any further claim for rent said company presented a bill for rent for the entire month of May, 1905.
In the case of Underhill v. Collins (132 N. Y., 269) the court held that (p. 271)—
"The acceptance by the landlord of the surrender of the leased premises would prevent the recovery of rent not already due, and if the landlord takes possession of such premises so surrendered and re-lets them to other parties, he will be deemed to have accepted a surrender unless there are facts rebutting this inference."
66* ** *(p. 272). It may be true that such re-letting would operate as an acceptance of a surrender of the premises unless there is an agreement, express or implied, that such re-letting may be made."
I am of opinion that the acceptance of the keys alone under the circumstances did not amount to an acceptance of the surrender, but if the acceptance of the keys were followed by a reletting it would operate as an acceptance of the surrender, because there was no agreement, expressed or implied, that the premises might be relet for the benefit of the Government.
I have therefore to advise you that if said premises were not relet during April or May you are authorized to pay the rent for these two months. If they were relet during these months you are authorized to pay the rent to April 27, 1905, only. Before any payment is made the claimant should be required to show whether it relet said premises, or any portion of them, during April or May, 1905, and said evidence should accompany the voucher.
The case in 7 Comp. Dec., 342, does not apply, for the reason that it relates to a holding over for a longer period than the premises could have been rented for by express contract, and was also under a void contract from the beginning, not having been made as required by section 3744, Revised Statutes. In this case there was no holding over in any proper sense of the term, and it is only a question of ascertaining what are the conditions imposed by the contract and enforcing them. (Morgan v. United States, 14 Ct. Cl., 319, 326.)
EXTRA PAY TO EXPERT RIFLEMEN OF THE MARINE CORPS.
Enlisted men of the Marine Corps who have qualified as expert riflemen are not entitled to the extra pay allowed by article 1373, Army Regulations of 1904, to expert riflemen of the infantry of the Army. (Assistant Comptroller Mitchell to Col. G. C. Goodloe, paymaster, Marine Corps, June 23, 1905.)
I have received, through the Secretary of the Navy, your request, under date of the 18th instant, for decision of the following question:
"Are enlisted men of the United States Marine Corps who have qualified as expert riflemen entitled to extra pay allowed enlisted men of the infantry of the Army by Army Regulations, article 1373?"
The act of March 2, 1903 (32 Stat., 929), entitled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1904,” provides:
"Pay of enlisted men: For pay of enlisted men of all grades, including recruits, nine million dollars.
"For additional pay for length of service, one million dollars. "For extra pay to expert ritlemen, twelve thousand dollars: Provided, That expert riflemen, hereafter qualifying as such, shall receive one dollar a month in addition to their pay."
Article 1373, Army Regulations of 1904, provides:
"Enlisted men qualifying as expert riflemen are entitled to one dollar per month in addition to their pay from the date of publication in Department orders of the fact of qualification. The first muster and pay rolls on which they are mustered for increased pay must give the number, date, and source of such order. They will cease to be entitled to the extra pay as expert riflemen at the close of the first subsequent target year in which they shall fail to qualify as expert riflemen or sharpshooters, unless they belong to an organization of engineers, cavalry, or infantry none of the members of which were classified. When a soldier thus ceases to be entitled to the additional pay, the fact, with date, will be noted on the first muster and pay rolls subsequent to the close of the target year."
Section 1612 of the Revised Statutes provides:
"The officers of the Marine Corps shall be entitled to receive the same pay and allowances, and the enlisted men shall be entitled to receive the same pay and bounty for reenlisting, as
are or may be provided by or in pursuance of law for the officers and enlisted men of like grades in the infantry of the Army."
Outside of the above section there is no provision in the statutes prescribing the pay of officers and enlisted men of the Marine Corps. The Marine Corps has an organization distinct from either the Army or Navy (Rev. Stat., secs. 15961623). It is at all times subject to the laws and regulations established for the government of the Navy, except when detached for service with the Army by order of the President, and when so detached it shall be subject to the Rules and Articles of War for the government of the Army. (Sec. 1621, R. S.)
So long as the Marine Corps is not detached by order of the President and is subject to the laws and regulations established for the government of the Navy, I do not think article 1373, Army Regulations, is applicable to it. Unless so detached it is controlled by the Secretary of the Navy and not by the Secretary of War. If the Navy Department should issue orders or establish a regulation under which enlisted men of the Marine Corps may qualify as expert riflemen, and they should so qualify, I am of opinion they would be entitled to "one dollar a month in addition to their pay the same as is provided for expert riflemen in the Army by the act of March 2, 1903, supra.
BURIAL EXPENSES OF DECEASED EMPLOYEES.
While ordinarily the Government is not liable for the burial expenses of its deceased employees, payment of the reasonable expenses of a decent burial may be authorized when it is necessary for sanitary reasons to remove the remains of a deceased employee from the grounds on which other employees are located.
(Comptroller Tracewell to I. W. Mc Connell, special disbursing agent, reclamation service, June 23, 1905.)
I am in receipt of your letter of the 12th instant, requesting my decision as to whether you are authorized to pay the claim of G. W. Rippey, an undertaker of Montrose, Colo., for $450, being for burial expenses of six employees of the