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and subject to the conditions set forth therein. As above noted, upon compliance with those conditions the employees are entitled to be "restored" to their former civilian position, or to a position of like seniority status and pay; and it is only upon such restoration that there materializes a right to "be considered as having been on furlough or leave of absence during his period of active military service" and to reacquire the leave and other benefits which would otherwise have been lost to them. In other words, it is only in the event that the conditions of section 8 of the Selective Training and Service Act of 1940, have been complied with that such an employee is entitled to be restored to his position; and it is only in the event that he be so restored that he is entitled to be considered as having been on leave of absence from his position and to be recredited with his accrued leave.

As previously stated herein, one of the conditions which must be met by the employee before he may be "restored" to a position is that he make "application for reemployment" within the time prescribed. The term "application for reemployment" would appear to contemplate application for return to an actual civilian duty status and not merely a return to a pay status for the sole purpose of securing compensation for unused leave to his credit at the time he entered the military or naval service. Similarly, the term "restored to a position" contemplates restoration to an actual and active occupancy of the position which contemplates performance of the duties thereof. Therefore, a person who is placed on a pay roll for the exclusive purpose of receiving pay for leave, with no intention of occupying a civilian position, could not be regarded as having been "restored to a position" within the meaning of section 8 of the Selective Training and Service Act, and, as previously stated, unless and until such restoration takes place no right to a recredit with respect to accumulated and unused annual leave would exist under the terms of the said section of the statute.

Furthermore, the leave right, which but for section 7 of Public Law 213 and section 8 of the Selective Training and Service Act would be lost to the employee, was not a right to pay for leave; it was a right "to leave in kind only; that is, the right to be absent from duty for the prescribed period without loss of pay while retaining a status as one of the 'civilian officers and employees of the United States."" Comp. Gen. 899, 900. This is the right which is restored to him upon compliance with the conditions of section 8, supra. The placing of an employee's name on the rolls under the conditions outlined in question 3 (c) of your letter, with no actual occupancy of the civilian position or duty status as an employee, with attending employer control, would amount in practical effect to a grant of pay in lieu of

leave. Since no such right existed at the time the employee enlisted, there could be no such right allowed by the terms of section 8 of the act. Question 3 (c) is answered accordingly.

(B-21165)

TRAVELING EXPENSES-PRIVATE PARTIES ACTING IN
ADVISORY CAPACITY

The transportation and traveling expenses of a private party, not in the Federal service, serving without compensation in an advisory capacity to the Secretary of War are governed by the terms of the agreement under which the travel was performed and are not subject to the Standardized Government Travel Regulations in the absence of a contrary indication in his travel order or otherwise.

Comptroller General Warren to Col. W. M. Dixon, U. S. Army, November 3, 1941:

By first indorsement dated October 13, 1941, the Chief of Finance, War Department, forwarded here for consideration your letter of October 9, 1941 (.016 (Bond, Horace M.) P&MD-MFC-ms), as follows:

Attached hereto is a voucher in favor of Mr. Horace M. Bond, Expert Consultant to the Secretary of War, in the amount of $16.40 covering travel expenses, which has been presented to the undersigned, a disbursing officer, for payment.

The amounts claimed on this voucher are excess plane fare from Atlanta, Georgia, to Washington, D. C., and return, and mileage at the rate of 5¢ per mile for travel from Fort Valley, Georgia, to Atlanta, Georgia, and return. Mr. Bond was allowed the price of a round-trip ticket from Atlanta, Georgia, to Washington, D. C., and return. The amount claimed on this voucher of $7.20 represents the excess plane fare over the round-trip rate.

In view of the fact that travel by automobile was not authorized in advance and no rate per mile was stated in the travel order, and also a round-trip ticket for plane fare was not secured, the undersigned is in doubt as to whether payment of the attached voucher is authorized, and your decision in the matter is respectfully requested.

The travel order issued to Mr. Horace M. Bond, Fort Valley State College, Fort Valley, Ga., is dated June 18, 1941, and reads as follows:

Confirming instructions which were given you, you are hereby directed to proceed on or about June 16, 1941, from Fort Valley, Georgia, to Washington, D. C., on official business in connection with the Joint Army and Navy Committee on Welfare and Recreation, and upon completion thereof to return to Fort Valley, Georgia. Due to the exigencies of the service it was impracticable to issue travel orders to you in advance of the travel directed.

Your actual transportation expenses will be paid and a per diem of $10.00 in lieu of subsistence and other expenses will be allowed for the time of travel to and from the above, and for the time thereat in the performance of above duty, payable (Pub. No. 611-76th Congress) from funds to be allocated by the Chief of Finance.

You are authorized to use commercial aircraft or rail.

The travel directed is necessary in the public service.
By order of the Secretary of War.

Pursuant to "instructions" confirmed by the above-quoted travel order, Mr. Bond traveled from Fort Valley, Ga., to Atlanta, Ga., by

privately owned automobile, June 17, 1941, from Atlanta, Ga., to Washington, D. C., by airplane the same day, returning to Atlanta by airplane June 20, 1941, and from Atlanta to Fort Valley, Ga., by privately owned automobile. The submitted voucher covers reclaim of the sum of $16.40, said to have been deducted on voucher No. 24,248 of your August 1941 accounts, $7.20 of which amount represents excess airplane fare, i. e., the difference between straight airplane fare from Atlanta, Ga., to Washington, D. C., and return and the applicable round trip fare, and the balance, $9.20, representing mileage claimed for 184 miles at 5¢ per mile. These deductions appear to have been made because of the Standardized Government Travel Regulations, paragraph 16 of which regulations requires the procurement of round-trip tickets whenever practicable and economical, and paragraph 12 (a) of which was not complied with in respect of the mileage claim, i. e., there having been no advance authorization issued for use of a privately owned automobile on a mileage basis.

The appropriation act approved June 13, 1940, 54 Stat. 350 (Public, No. 611, referred to in the second paragraph of the travel order), contains the following under the heading "Salaries, War Department," subheading "Office of Secretary of War:"

* Provided, That not to exceed $50,000 of the appropriations contained in this Act for military activities shall be available for the payment of actual transportation expenses and not to exceed $10 per diem in lieu of subsistence and other expenses of persons serving while away from their homes, without other compensation, in an advisory capacity to the Secretary of War

While it is not so stated in the papers forwarded with your letter, it is understood from the second paragraph of the travel order that Mr. Bond was not in Federal service, that is, he was not holding an office of honor or trust under the United States Government but was serving without compensation in an advisory capacity to the Secretary of War under authority of the above-quoted appropriation act. If as it is assumed-Mr. Bond was not an officer or employee of the United States during the travel time involved, his transportation and traveling expenses were not subject to the general restrictions prescribed by statute, the Standardized Government Travel Regulations, and the rules stated in the decisions of this office thereunder, applicable to officers and employees of the United States, but his right to reimbursement is governed by the terms of the agreement under which the travel was performed. See 8 Comp. Gen. 465, and the decisions therein cited; also 21 Comp. Gen. 29. Compare decision of October 27, 1941, B-21014, 21 Comp. Gen. 377, and the decisions therein cited, applicable to persons who are appointed to, and hold, an office of honor or trust under the United States Government and serve without compensation.

There is nothing in the travel order or otherwise in the papers forwarded with your letter to indicate that the travel of Mr. Bond in this instance was to be controlled by the provisions of the Standardized Government Travel Regulations, including paragraph 16 requiring the purchase of round-trip tickets whenever practicable and economical, or the provisions of paragraph 12 (a) thereof, as well as the act of February 14, 1931, 46 Stat. 1103, as amended by section 9 of the act of March 3, 1933, 47 Stat. 1516, and the act of April 25, 1940, 54 Stat. 167, authorizing mileage for use of a privately owned automobile for official business only when authorized in advance and when travel on that basis has been determined to be more economical and advantageous to the United States than travel by common carrier (11 Comp. Gen. 126, id. 333, 12 id. 528, 16 id. 502).

Accordingly, you are authorized to pay the voucher returned herewith, if otherwise correct.

(B-19298)

PRIVATE PROPERTY-DAMAGES CAUSED BY NEGLIGENCE OF GOVERNMENT EMPLOYEES CLAIMS SETTLEMENT JURISDICTION

The authority in section 20 of the 1942 Emergency Relief Appropriation Act for the Commissioner of Work Projects to settle, and pay from the appropriation, any claim not in excess of $500 on account of damage to or loss of privately owned property caused by the negligence of W. P. A. employees while acting within the scope of their employment, relates exclusively to tort claims and affords no basis for the Commissioner to settle claims for damages resulting from the negligence of employees in those cases, such as damage to rented equipment, in which the claimants otherwise have a legal remedy against the Government.

Comptroller General Warren to the Federal Works Administrator, November 4, 1941:

There has been considered a letter of October 9, 1941, from your General Counsel, as follows:

In the absence of Mr. Carmody there has been received your letter of August 25, 1941 (B-19298), in reply to his communication of July 28, 1941, concerning the question whether the Work Projects Administration could consider, under Section 20 of the Emergency Relief Appropriation Act, fiscal year 1942 (55 Stat. 396), claims for damage to property under rental to the Administration, the written presentation of which claims was made within the prescribed statutory period, not to the Work Projects Administration, but to the Procurement Division of the Treasury Department, the agency required, under Executive Order No. 7034, dated May 6, 1935, to provide for the procurement of all materials, etc., for the Work Projects Administration.

It is noted that you are of the opinion that "if the claims were presented in writing within the time required by law the fact that they were filed with the Procurement Division rather than with the Work Projects Administration would not preclude their consideration, etc., under the law, supra, by the Commissioner of Work Projects, and their payment from funds appropriated for the Work Projects Administration, provided, of course, they are claims otherwise properly for consideration under said law." You are of the further opinion, however, that such claims are not otherwise properly for consideration under said law. The conclusion is reached that "Where the leased property, at the time it is damaged or lost, is in the custody of the Government under a rental contract, it must be

assumed that the amounts payable by the Government for such use, including any damages for which the Government may be liable, are for determination under and in accordance with the terms of the rental contract and that there is no authority, unless otherwise specifically provided by law, to impose upon the Government any liability aside from and in addition to such as may be imposed under the provisions of the contract."

The first interpretation to which the decision is susceptible is that claims for damage to rented property or equipment cannot be considered under the laws authorizing the consideration of claims "on account of damage to or loss of privately owned property," for the reason that such laws "apparently contemplate that the 'privately owned property' referred to therein is property in the control of the private owners or their agents at the time it was damaged or lost rather than property leased or hired to the the United States and lost or damaged while being used for the purposes contemplated by the rental contract." Such an interpretation, in effect, holds that when an individual rents or leases personally owned property to the Government, the property ceases to become privately owned, merely because the owner contracts away his right or control over the equipment during the life of the contract. The test applied in the decision is control, not ownership. Control, however, is only an indicia of ownership. It is well settled that a bailor retains the general ownership of bailed property even though he has no control over it, the bailee obtaining only the special ownership necessary to protect his interest (See 3 R. C. L. 84 and cases cited therein). The parting with possession does not destroy the bailor's ownership or title but merely restricts his complete dominion over the chattel in accordance with the limitations specified in the rental contract or bailment. The general ownership and legal title still remain in the bailor.

The Procurement Division awards contracts for the rental of equipment with operators, in which cases the Government obtains no right of possession or custody of the equipment, but merely a contractual right to direct the type of work to be performed. Such rented equipment would fall within the category mentioned in the decision as "property leased or hired to the United States and lost or damaged while being used for the purposes contemplated by the rental contract." However, it is submitted, it could not be held that the same equipment was not "in the control of the private owners or their agents at the time it was damaged or lost **" In such instances, the Commissioner of Work Projects would be at a loss to determine which of the tests to apply, in order to ascertain whether a claim for damage to the equipment could be considered.

It is submitted that the decision is contrary, not only to logic, but to precedent. The words "privately owned property" are used in the same sense in section 20 of the Emergency Relief Appropriation Act, fiscal year 1942 (55 Stat. 396), and in the act of December 28, 1922 (42 Stat. 1066). This is inferentially admitted in the decision. Also, in a decision of November 18, 1939 (B-6466), addressed to the Federal Works Administrator, it was specifically stated, concerning section 26 of the Emergency Relief Appropriation Act of 1939 (53 Stat. 927), which contains a provision identical with section 20 of the Emergency Relief Appropriation Act, fiscal year 1942 (55 Stat. 396), that "The provisions of this section appear to be substantially the same as those of the act of December 28, 1922, 42 Stat. 1066, *." It would therefore seem free from doubt that any difference existed between the statutes in question, as far as the points under discussion are involved.

Although the decision recites that such laws as the act of December 28, 1922 (42 Stat. 1066), and section 20 of the Emergency Relief Appropriation Act. fiscal year 1942 (55 Stat. 396), "apparently contemplate that the 'privately owned property' referred to therein is property in the control of the private owner or their agents at the time it was damaged or lost rather than property leased or hired to the United States and lost or damaged while being used for the purposes contemplated by the rental contract," the legislative history of the act of December 28, 1922, is devoid of any discussion of the meaning of the words "privately owned property." As pointed out by the Attorney General of the United States in an opinion dated August 12, 1936 (38 Op. A. G. 514), "Ordinarily privately owned property, or private property, is understood to embrace property owned by individuals or private corporations as distinguished from property owned by governmental bodies or agencies; but this conception of private property is subject to qualification. It has been held, for instance, that property owned by a state may be private property in relation to the Fed

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