Mr. BLANTON, It would be collectible through the Court of Claims. This bill does not apply to legal claims.

Mr. SNELL. I am taking what you call legal claims.

Mr. BLANTON. This bill is seeking a remedy for payment of claims that have no legal status whatever.

Mr. SNELL. That is what we are talking about.

Mr. BLANTON. If they had legal status, Members would pursue some other method of collecting them; but this bill is with respect to claims that have no legal status. It is with respect to claims that you cannot collect by law; it is with respect to claims the payment of which depends entirely upon the gratuity of the Congress.

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Mr. DAVIS of Tennessee.

As stated by the gentleman from Texas [Mr. Blanton], it is not a question of claims based upon legal rights. It is a case of moral obligations

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Mr. MANN. There is no practical chance of paying these claims under the present system. For myself-and I have no criticism to make of others-I will not introduce a claim for a small amount to go through the machinery of this house. I think the Committee on Claims ought to have the opportunity to consider larger claims against the Government and to give them consideration instead of spending their time considering claims of $50 or $500. We must change our system in some way; we must make provision in some way so that claims against the Government can be properly considered. It is true that all legal claims against the Government in one sense are now promptly paid, but the Government does not permit itself to be sued in the Court of Claims or elsewhere for injuries caused by torts. The Government cannot afford to run great Army trucks all over the country over the highways of the country and say to the men running them, "You can run into any man's machine as you please, damage and ruin his property, and there is no responsibility." And there is none now. So I think this measure is a very moderate measure, a very just measure, attended with no difficulty, attended with no danger, and I hope it may pass.

Furthermore, the title of the act itself-"An act to provide a method for the settlement of claims arising against the Government of the United States in sums not exceeding $1,000 in any one case"-indicates that the act does not apply to legal claims for the enforcement of which methods already have been provided.

It appears clear, therefore, as stated in the opinion of the Attorney General, supra, that the act of December 28, 1922, was enacted with respect to small meritorious claims against the Government which were not legally enforceable.

Having regard for the relation of section 20 of the Emergency Relief Appropriation Act, fiscal year 1942, to the act of December 28, 1922, and the fact that both provisions of law relate to the same class of claims, it must be held that the Commissioner of Work Projects is not authorized under said section 20 to pay from appropriations made available by the current Emergency Relief Appropriation Acts, claims for damages to or loss of private property caused by the negligence of Works Progress or Work Projects Administration employees, while acting within the scope of their employment, in those cases in which the claimants otherwise have a legal remedy against the Government. See in this connection the decision to you, dated November 18, 1939, B-6466 (19 Comp. Gen. 506), cited in the above-quoted letter, wherein

it was stated that the term "any claim" as used in a similar provision of a prior appropriation act "would appear to cover all claims of the type described when filed by any person to whom the United States would have been liable prior to the enactment of the statute but for its sovereign immunity." (Italics supplied.)

And this brings up the question of whether claims for damages to, or loss of, property rented to the Government, resulting from the negligence of Government employees in the performance of their duties, are legally enforceable against the United States. That the equipment rental contracts under discussion create a bailment relationship between the contractors as bailors and the Government as bailee, for the mutual benefit of the contracting parties, is hardly open to question and appears to be conceded. Under such a relationship the bailee ordinarily is responsible for negligence in the use and care of the equipment bailed and must respond in damages in the event of failure to return the bailed property, at the termination of the bailment, in the same condition as that in which it was received, reasonable wear and tear excepted. This is a responsibility implied by law even though it is not expressly provided for in the contract. 6 C. J. 1114, 1121, 1139. And while the liability for damages in such cases results from the negligence of the bailee or its agents, the express or implied duty of the bailee not to be negligent in the use and care of the bailed property has its source in contract. Since the liability has its source in contract both the Supreme Court of the United States and the Court of Claims have held that the United States is liable for negligence under such contracts and that such liability may be enforced in the courts. See United States v. Bostwick, 94 U.S. 53, 68; Pintsch Compressing Co. v. United States, 61 Ct. Cls. 858, 863; and The Gulf Transit Company v. United States, 43 Ct. Cls. 183. In the Pintsch Compressing Co. case, supra, the Court of Claims summed up the responsibility of the United States under a mutual benefit bailment in these words:

The real question is as to the liability of the United States for the value of the tanks. The record leaves no room for doubt that the United States rented the tanks. It also satisfactorily appears that they were so damaged that they could not be returned to the plaintiff in serviceable condition for its uses. It is true that the United States made no contract to compensate the plaintiff for the value of the tanks if they were not returned in good condition, but the law imposed that obligation. The contract was one of bailment for hire imposing the obligation to return the rented property in as good condition as when received, natural wear excepted, and failing in this, to compensate to the extent of the value of the property when received.

The rights and obligations of the parties seem to be so clearly defined that lengthy discussion is rendered unnecessary. We have concluded that the plaintiff is entitled to recover the ascertained value of the tanks and have directed judgment accordingly.

Furthermore, under section 236 of the Revised Statutes, as amended by section 305 of the Budget and Accounting Act, 1921, 42 Stat. 24,

it is provided that all claims and demands whatever against the United States shall be settled and adjusted in this office. It long has been held by the accounting officers of the Government that claims resulting from the failure of the Government to exercise the proper degree of care under its bailment contracts are cognizable under said section and that appropriated funds may be used to satisfy such claims when properly established. See 9 Comp. Dec. 488; 12 id. 500; 16 id. 68 and cases there cited; 18 id. 149; 21 id. 47; 24 id. 606; and 8 Comp. Gen. 448. Cf. 6 Comp. Dec. 953; 7 id. 400; 19 id. 131; 27 id. 299; 1 Comp. Gen. 192; 5 id. 253; id. 557; 7 id. 653; 15 id. 929; 18 id. 8; and 20 id. 632. Also, see 20 Comp. Gen. 573. In evident recognition thereof the Treasury Department for years has forwarded to this office for settlement, with the knowledge and approval of the Works Progress Administration or Work Projects Administration, numerous claims for damages to bailed property caused by the negligence of Government employees in carrying on the activities of such agencies and this office has allowed or disallowed payment thereof as required by the law and the facts in each case. Many such claims now are pending before this office.

It must be apparent, also, that the Congress did not intend, by the act of December 28, 1922, or section 20 of the Emergency Relief Appropriation Act, supra, to legislate with respect to enforceable claims against the Government if for no other reason than that the terms and conditions of such legislation are wholly inconsistent with other legislation with respect to enforceable claims. Thus, in both statutes, there is a 1-year period of limitation within which to file claims although as to this office the statute of limitations is 10 years (54 Stat. 1061) and as to the Court of Claims the period of limitations is 6 years (28 U. S. C. A. 262). It would hardly be contended, in view of what has been said hereinbefore, that a claimant would have no remedy before this office or the Court of Claims in these bailment cases because the claims were not filed within the 1-year period prescribed in the said section 20.

That section 20 applies exclusively to tort claims appears to have been the view of the court in the case of Carver v. Haynes, et al., 37 F. Supp. 607, decided February 26, 1941. That case involved the Work Projects Administration and section 26 of a prior appropriation act substantially identical with section 20 now under consideration; and with reference to the said section 26 the court stated:

While there is no common law liability against the government for a tort, such immunity may be waived. In the act under discussion, Congress has limited the liability to privately owned property to $500 and provides the procedure. Congress intended clearly to limit the liability of the defendant government agencies. [Italics supplied.]

Likewise section 20 of the act here considered limits the liability of the Government but I assume it would not seriously be contended that, under a bailment contract for the rental of equipment, a claimant must proceed under section 20, and not in the courts, and may not recover in excess of $500 even though the damage to its equipment, caused by negligence of Government employees in their use thereof, far exceeds that amount.

Insofar as concerns an election of remedies, it may be stated that such doctrine has no application where a party has in fact only one available remedy, although he may think he has another which he pursues without avail. 20 C. J. 6, 21. As hereinbefore shown, section 20 of the appropriation act here involved affords no remedy against the failure of the Government to exercise the proper degree of care with respect to equipment rented under its bailment contracts. Consequently, there is no basis for an election of remedies. But even if it could be conceded that section 20 applies to such cases, it well may be doubted that said section 20 affords a remedy because a claim filed under section 20 is not legally enforceable against the Commissioner (Carver v. Haynes et al., supra). Therefore should a legal claim be filed under section 20 and be denied by the Commissioner there would appear to be no proper basis, upon the subsequent presentation of the claim to this office or the courts, to bar the claimant on the ground that the claimant previously had elected to proceed under section 20. Where there are in fact two remedies, an election to pursue one is a bar to a subsequent proceeding based upon the other.

This office concurs in the view expressed in the above-quoted letter of October 9, 1941, that the term "privately owned property" as used in section 20 of the Emergency Relief Appropriation Act, fiscal year 1942, has no different meaning than the term "privately owned property" as used in the act of December 28, 1922. However, insofar as the equipment rental contracts under consideration be concerned, further discussion of the meaning of such term would appear to be unnecessary because, as shown above, the said section 20 does not authorize payment of claims for damage to the rented equipment caused by the negligence of Government employees in connection with the use thereof.

The fact that the Congress may have appropriated funds to pay negligence claims arising out of bailment contracts which have been reported to it as under the act of December 28, 1922, is not controlling in the matter here involved. It is within the power of the Congress, of course, to appropriate funds for the payment of any specific claims presented to it and when it has done so it is not within the suthority of this office to question the exercise of that power. But the administrative certification of a claim to Congress for its consid

eration and for an appropriation is an entirely different matter than the administrative payment of a claim from funds appropriated for the authorized activities of an agency of the Government. In the latter event it is within the authority of this office-and a part of its duty-to withhold credit for any such expenditure unless made for the purposes and objects for which the funds sought to be charged were appropriated and in accordance with the terms of the acts making the appropriations and other applicable statutes. For reasons hereinbefore stated, it appears clear that the Congress did not intend, in section 20 of the Emergency Relief Appropriation Act, fiscal year 1942, to authorize the administrative payment of claims on account of damage to or loss of property bailed to the Government even though such damage or loss be caused by the negligence of Government employees.

To the extent that any decisions of my predecessors may appear to be in conflict with what is herein stated-and thus inconsistent with the decisions and principles applied generally by the accounting officers of the Government over a long period of years-they will not be followed by this office in the performance of the duties imposed upon it by law.

(B-20362)

POSTMASTERS-PAYMENT FOR CIVILIAN LEAVE DURING MILITARY OR NAVAL SERVICE

In view of the fact that the limitation in the Postal regulations on accumulated leave in excess of 30 days is merely designed to prevent too long an absence in any one fiscal year and not to cancel such excess, decision of September 19, 1941, B-20362, 21 Comp. Gen. 237, authorizing payment for accumulated and current accrued leave to postmasters ordered to active military or naval duty under conditions therein set forth may be applied to authorize payment for all accumulated and current accrued leave, rather than only leave not in excess of 30 days.

Comptroller General Warren to the Postmaster General, November 4, 1941: I have your letter of October 18, 1941, as follows:

The receipt is acknowledged of your decision of September 19, 1941 (B-20362), interpreting Public No. 202, 77th Congress, with respect to postmasters.

The penultimate paragraph of your decision contains the following sentence: "The fact that their offices have been filled by an acting postmaster temporarily during their absence on active military duty under authority of the act of December 6, 1910, supra, does not defeat the right of postmasters to receive compensation for the accumulated and current accrued leave to their credit (not to exceed 30 days) at the time they were ordered to active military or naval duty, for which there would be available any unexpended balance of the lump sum appropriation item 'Compensation to postmasters' for the fiscal year 1941." The parenthetic clause "not to exceed 30 days" appearing in this sentence is apparently based upon the limitation contained in paragraph 5 (a) of section 445, Postal Laws and Regulations, 1940. There are several pending cases in which postmasters have to their credit accrued annual leave in excess of 30 days. It will be appreciated that the limitation contained in paragraph 5 (a)