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If the Government, in consideration for a service not available at the lawfully filed tariff rates of the railroads, may contract with the railroads themselves to furnish such transportation at rates not subject to land grant, it would appear that an agreement with a forwarder to furnish at agreed rates not subject to land grant a service not available at the railroad rates would be equally valid. It would seem, also. from matters stated in your submission, that opportunities for the furnishing of such special services on the part of forwarders probably would occur either in connection with the assembling of separate lots at origin, or in their distribution at destination, or in the expedition of movement not available otherwise than in forwarder service.

Accordingly, you are informed that where it is administratively determined that the needs of the Government service require a handling by forwarders, in connection with transportation, that is not available at the published tariff rates of the railroads but is procurable from forwarders, an agreement with the forwarders to furnish such transportation service at other than land-grant rates would appear to be authorized; and where the record in connection with disbursements shows that payments for such special services are made pursuant to and in accordance with a contract for the application of agreed rates, this office will not be required to withhold credit for such payments merely because such agreed rates were in excess of net landgrant rates applicable for service over land-grant railroads.

Relative to your inquiry whether this office will approve the payment of charges on the basis described in the proposed contract clause submitted with your letter, it is noted that said clause makes reference to certain other clauses, the provisions of which are not shown, and, accordingly, your question cannot be answered more specifically than as indicated in the above statement of the principles which will be controlling in the audit of the paid accounts by this office. In this connection, however, concerning the proposed provision for the payment "in respect of any shipment handled by the forwarder for account of the War Department, the lowest rate normally charged to and paid by commercial shippers for a similar shipment, notwithstanding that such shipment moved, in whole or in part, over" a land-aided railroad or one agreeing to equalize therewith in the matter of charges, it is assumed that the contract will otherwise clearly show that such clause is to have application only to such shipments as may require and receive the special services afforded by the forwarder but not available from the land-grant or equalizing carriers at their tariff rates.

(B-24904)

CERTIFYING AND DISBURSING OFFICERS LIBRARY OF CONGRESSLIABILITIES, RELIEF, ETC.

The act of December 29, 1941, which establishes the responsibilities of certifying and disbursing officers in the executive branch of the Government, is not applicable to similar officers of the Library of Congress-an agency not in the executive branch of the Government-and the fixing of responsibility and bonding of certifying officers for the Library, under an administrative arrangement conforming substantially with the procedure provided for under the act, would not operate to make the disbursing officer for the Library responsible only to an extent comparable with the responsibility fixed by the act for disbursing officers in the executive branch of the Government. The fixing of responsibility and bonding of certifying officers of the Library of Congress-an agency not in the executive branch of the Government-under an administrative arrangement conforming substantially with the procedure provided for under the act of December 29, 1941, which establishes the responsibilities of certifying and disbursing officers in the executive branch of the Government, would not operate to authorize the General Accounting Office to grant the certifying officers of the Library the relief or right to advance decisions which is authorized by the act for such officers in the executive branch of the Government.

Comptroller General Warren to the Librarian of Congress, May 5, 1942:

I have considered your letter of March 28, 1942, as follows:

Public Law No. 389, 77th Congress, 1st Session, approved December 29, 1941, entitled "An Act to fix the responsibilities of disbursing and certifying officers, and for other purposes" applies in general only to the executive department.

The Librarian of Congress, however, under his general regulative authority (2 U. S. C. 136) has issued instructions fixing the responsibilities of certifying officers in the Library of Congress and will require bonds of such officers similarly to the requirements of this act.

I enclose a copy of the form of bond which it is intended to use for this purpose. It will be seen that this form is identical with that prescribed by the Treasury in its Circular No. 680, February 16, 1942, with the exception that the inapplicable matter is struck out.

Before proceeding in this matter I should be glad to have your advice on several points:

1. Is the proposed form of bond adequate to the intended purpose in the view of the General Accounting Office?

2. If the responsibiliites of certifying officers in the Library of Congress are fixed as proposed, and if these officers are bonded as proposed, will the Comptroller General have authority to extend relief to such certifying officers in cases covered by the provisos in section 2 of the act?

3. If the responsibilities of certifying officers in the Library of Congress are fixed as proposed and if these officers are bonded as proposed, it is presumed that the officer or officers disbursing appropriations for the Library of Congress will be held responsible only to an extent comparable with disbursing officers under the executive department in accordance with section 1 of the act, there being no statutory provision to the contrary (cf. 2 U. S. C. 142a).

4. If the responsibilities of certifying officers in the Library of Congress are fixed as proposed, and if these officers are bonded as proposed, it is requested that the Comptroller General accord them the right to apply for and obtain decisions on questions of law involved in payments of vouchers presented to them for certification, equally with certifying officers in the executive departments as under section 3 of the act.

The purpose of the act of December 29, 1941, 55 Stat. 875, was to set definite limits of responsibility for certifying and disbursing officers with respect to disbursements made under the executive branch of the Government. The need for the legislation arose because of the

uncertainty and confusion encountered in determining the liabilities of these two classes of officers because of the provisions of the act of August 23, 1912, 37 Stat. 375, as amended (31 U. S. C. 82), and of section 4 of Executive Order No. 6166, dated June 10, 1933. See, in this connection, the annual report of this office for the fiscal year ending June 30, 1940, chapter 3, pages 63 et seq. Both the act of 1912 and the Executive Order of 1933 appear to be limited in their application to the executive branch of the Government; and since it is not understood that disbursing officers of that branch are involved in the disbursement of funds for the Library of Congress, and as that agency long has been recognized as not under the executive branch of the Government (21 Comp. Dec. 66), the vexing problems of determining the liabilities of the two classes of officers under said act and Executive order did not exist with respect to such disbursements. Furthermore, the plain terms of the recent act of December 29, 1941, limit its application to cases in which the disbursements are made by disbursing officers under the executive branch of the Government.

The authority to prescribe rules and regulations for the government of the Library of Congress is vested in the Librarian by act of Congress, 29 Stat. 544 (2 U. S. C. 136), and if, in administering the affairs of the Library, it is deemed administratively advisable to follow substantially the same procedure as that provided by law for the executive branch of the Government, there would appear to be no legal objection thereto insofar as this office is concerned. And, if regulations are issued fixing the responsibilities of certain classes of officers or employees of the Library, such regulations would become part of the contract of employment of such persons, provided, of course, they do not contravene existing provisions of law. A-31814, May 7, 1931. It should be understood, however, that any responsibility or liability so imposed would arise by virtue of the administrative regulations rather than by reason of specific provisions of law and would be for enforcement accordingly.

In this connection, it may be pointed out that neither the prescribing of such administrative regulations nor the bonding of certifying officers could operate to relieve the disbursing officer for the Library of any responsibility or liability under his bond-as would seem to be suggested by question 3 in your letter. The primary responsibility for the expenditure of, and proper accounting for, public funds is that of the disbursing officer to whom the funds are advanced and that responsibility cannot be shifted to another who may be willing to assume it and to execute a bond for that purpose unless such transfer of responsibility is specifically authorized by law. Insofar as concerns this office, such an assumption of liability on the part

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of the certifying officer of the Library would have to be regarded merely as an administrative arrangement whereby the certifying officer would be required to make good certain losses for which the disbursing officer primarily is liable; but this office would look to the disbursing officer for adjustment of any differences in his accounts-any recovery from the certifying officer or his surety being a matter for administrative consideration. Such being the case, it may be well for you to consider whether the bonds of the certifying officers of the Library should not run to the disbursing officer as well as to the United States.

In answer to your first question, it may be said that while the bond which you propose to require of certifying officers of the Library may impose liability upon them, the liability so imposed would have to be considered merely as an additional protection to the Government rather than as in substitution for, or in reduction of, the liability imposed by law upon the disbursing officer. This appears to answer question 3, also.

Likewise, questions 2 and 4 must be answered in the negative. There would be no authority of law in this office to recognize a right in such certifying officers either to be considered for the relief provided for under section 2 of the act of December 29, 1941, or to obtain advance decisions under section 3 of said act as said sections clearly are not applicable except where the disbursements are made by disbursing officers under the executive branch of the Government, and there is no other authority of law under which this office may recognize such right in certifying officers.

(B-25551)

LEAVES OF ABSENCE-SICK-ADVANCES "WAR SERVICE"
APPOINTEES

Sick leave may be advanced to employees given "War Service" appointments for the duration of the war and 6 months thereafter pursuant to the Civil Service Regulations promulgated under Executive Order No. 9063 to the same extent and upon the same basis as sick leave is authorized to be advanced to permanent employees, except that during a war service appointee's trial period, which may be regarded as tantamount to a "limited appointment" within the meaning of section 6 of the Sick Leave Regulations, the sick leave advanced may not exceed the amount that would accumulate during such period.

Comptroller General Warren to the Secretary of Navy, May 5, 1942:

I have your letter of April 22, 1942, JAG: S: MFL: kg SO-8580, as follows.

An inquiry has been received from one of the navy yards as to whether or not civilian employees appointed for the duration of the national defense program under Executive Order No. 8564 of October 8, 1940, are entitled to advanced sick leave with pay, and if so, the limit of the amount that could be so advanced.

By the provisions of section 4 of the standard sick leave regulations promulgated by Executive Order No. 8385 of March 29, 1940, temporary employees are not entitled to any advance sick leave. In decisions of the Comptroller General of August 1, 1936 (16 Comp. Gen. 105), and February 12, 1942 (21 Comp. Gen. 706), it was held that a probationary employee is not entitled under the Sick Leave Act of March 14, 1936, and regulations issued pursuant thereto, to sick leave in excess of the amount that would accumulate to the end of the probationary period.

As employees appointed under the War Service Regulations for the duration of the present war and for six months thereafter, under the provisions of Civil Service Commission Departmental Circular No. 323, do not appear to come within the category of either temporary or probationary employees, your decision is requested as to whether employees appointed under the War Service Regulations last mentioned may be advanced any sick leave, and if so, to what

extent.

By direction of the Secretary of the Navy.

Sections 3 and 7 of the sick leave regulations of March 14, 1936, 49 Stat. 1162, provide as follows:

SEC. 3. Administrative officers may advance thirty days sick leave with pay beyond accrued sick leave in cases of serious disability or ailments and when required by the exigencies of the situation.

SEC. 7. The leave of absence herein provided for shall be administered under such regulations as the President may prescribe, so as to obtain, so far as practicable, uniformity in the application of this act.

The uniform sick leave regulations issued by the President (Executive Order No. 8385, dated March 29, 1940) contained the following provision:

SEC. 6. Sick leave shall not be advanced in an amount that would exceed the total that would accumulate during the period from the date of the advance to the termination of a limited appointment (not temporary in character) or one expiring on a specified date.

Executive Order No. 9063, dated February 16, 1942, provides, in pertinent part, as follows:

1. The United States Civil Service Commission is authorized to adopt and prescribe such special procedures and regulations as it may determine to be necessary in connection with the recruitment, placement, and changes in status of personnel for all departments, independent establishments, and other Federal Agencies, except positions in the field service of the Postal establishment. The procedures and regulations thus adopted and prescribed shall be binding with respect to all positions affected thereby which are subject to the provisions of the Civil Service Act and Rules.

2. Persons appointed solely by reason of any special procedures adopted under authority of this order to positions subject to the provisions of the Civil Service Act and Rules shall not thereby acquire a classified (competitive) civil-service status but, in the discretion of the Civil Service Commission, may be retained for the duration of the war and for six months thereafter.

United States Civil Service Commission Departmental Circular No. 323 constitutes the regulations and procedures for effecting war service appointments under Executive Order No. 9063, supra. Sections 2 and 3 of "Regulation V," appended to said circular, provide as follows.

SECTION 2. Status of appointees.-Persons appointed under these regulations will not thereby acquire a classified (competitive) civil-service status. Unless otherwise specifically limited such appointments may be for the duration of the present war and for six months thereafter.

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