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448

Opinion of the Court

be allowed where door-to-door common-carrier rates are applicable.

SECTION 5. Means of Shipment.-Shipment shall be made by the most economical means, taking into consideration the costs of packing, crating, drayage, unpacking, and uncrating.

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SECTION 11. Shipment from Point Other than Last Official Station.-The expenses of transportation allowable hereunder shall be payable whether the shipment is from the last official station of the employee to the new one, or from some previous place of residence of the employee to the new official station, or partially from both: Provided, That the expenses payable shall in no case exceed the costs of shipment by the most economical route from the last official station to the new: And provided further, That no expenses shall be allowable for the transportation of property acquired en routefrom the last official station to the new.

As to Sections 5 and 11 of these regulations, the Government urges that it would not be possible to ascertain whether and how much crating and drayage were compatible with "the most economical means of transportation" when in fact transportation to the new station was not intended to follow the preliminary steps. In fact, it is likely that hardly any crating, and no drayage at all, would be done in connection with transportation from Washington to Philadelphia, since the transportation could, probably, be most economically done by a door-to-door motor van.

Plaintiff urges that the requirement in the regulations that "shipment shall be made by the most economical means" was not intended to, and could not, if it had been intended to do so, deprive an employee of the right to have his goods packed, crated, and drayed, at Government expense, since those rights were conferred by the applicable statute. We disagree. We think that for an employee to have his furniture crated, or drayed to a warehouse or elsewhere, when in fact it could be shipped most economically by being placed directly into a moving van from the employee's home, would be nothing but waste which, we think, the statute did not compel the administrative officers of the Government to reimburse from public funds.

Plaintiff urges the hardship of being compelled to wait a long time for his reimbursement for the part of his moving

Dissenting Opinion by Judge Whitaker

100 C. Cls.

expenses already incurred, since he has the privilege of making his move at any time up to March 16, 1944. We recognize the hardship, but we think plaintiff has oversimplified the problem. We think it is entirely possible that some of the expenses already incurred may not be reimbursable at all, when and if plaintiff completes his move to Philadelphia, and all the facts relating to "shipment * * * by the most economical means" are known. We refer to the costs of crating and drayage, already discussed.

We conclude that the Public Buildings Administration and the Comptroller General, who in the course of their duties encountered the statute before we did, were not unreasonable in interpreting it as being primarily intended to reimburse employees for the transportation of their property to a new station, and as including the other elements of expense when they were incurred in connection with transportation. We think that the right to separate reimbursement for the separate items mentioned in the statute would create such confusion and possible waste that it may not be supposed to have been intended by Congress, in the absence of statutory language clearly so stating. We think that the language of the statute does not clearly so state.

The defendant's demurrer is sustained and the plaintiff's petition is dismissed.

It is so ordered.

Littleton, Judge; and Whaley, Chief Justice, concur.

WHITAKER, Judge, dissenting:

The main purpose of the Act was to reimburse a civilian employee for his expenses incident to his transfer from one official station to another, that is, the designated expenses in connection with his household goods and personal effects. If an employee be transferred from one official station to another and is unable to transport his household goods and personal effects to the new station because he can find there no habitation in which he can use them, but if he has incurred as a result of his transfer any of the expenses designated in the Act in connection with taking care of them, it

448

Dissenting Opinion by Judge Whitaker

would seem that it was the purpose of Congress to reimburse him therefor.

Had plaintiff had his goods packed and crated and hauled to a transportation company and this company had carried them to Philadelphia, and thereafter plaintiff had discovered that he could find no habitation in which to use them and, therefore, had been forced to store them in Philadelphia, it would seem to be beyond question that he would have been entitled to recover the value of the packing and crating and the drayage of them as well as the cost of the transportation of them. If, on the other hand, he took the precaution of seeing whether or not he could find a place in his new location where he could use his goods before incurring the expenses of moving them there, and while doing so he was compelled to put them in storage, and if it later turned out that he could not find a place where he could use them, it would seem he would be entitled to the named expenses incurred in having them cared for at his old station, provided only such expenses do not exceed the cost of the packing, crating, drayage, and transportation of them to his new official station. I cannot ascribe to Congress an intention to make transportation a prerequisite to reimbursement for expenses incurred, however foolish such transportation would have been.

But the defendant says that plaintiff is unable to recover by reason of the provisions of sections 1 and 3 of Executive Order No. 9122, amending sections 5 and 11 of Executive Order No. 8588, both of which were issued under authority of the Act of October 10, 1940 (54 Stat. 1105; Title 5 U. S. C. 73c-1). Section 5, as amended, provides:

Shipment shall be by the most economical means, taking into consideration the cost of packing, crating, drayage, unpacking, and uncrating:

*

* *

The defendant says that the most economical means of shipping these goods to Philadelphia undoubtedly would be by motor van and that usually packing, crating, and drayage are not necessary when so shipped. Such facts do not appear from the petition and the case is before us on demurrer. Whether or not this is so, we are not informed.

Dissenting Opinion by Judge Whitaker

100 C. Cls.

It may be that packing, crating, and drayage are necessary whether shipped by motor van or not, or it may be that less packing and crating and drayage is necessary when shipped by motor van than when shipped by rail or water. These things are matters of proof and cannot be raised on demurrer.

But even if it did appear that no packing, crating, and drayage was necessary when shipped by motor van, still, under the first proviso of section 5 of the President's Executive order, as amended, it would seem plaintiff would be entitled to recover the expense of packing, crating, and drayage necessary for any sort of transportation, provided the cost thereof did not exceed the cost of transportation by the most economical method, and of such packing, crating, and drayage as was necessary when so transported. This proviso reads:

Provided, however, That the employee may have his effects moved by some means other than that determined to be most economical by paying the difference between the lowest available charges and the charges by the preferred means:

In a case discussed in 5 Comp. Gen. 229, an Army officer was transferred from Norfolk to Washington. Prior to his transfer he had stored his household goods in Washington, the place to which he was transferred. There was no transportation incident to his transfer, but the Comptroller General nevertheless allowed him the cost of drayage from the place of storage at his new station to his residence, provided the cost thereof did not exceed the cost of packing, crating, and transportation from the old to the new station. This was a perfectly sensible ruling and should be the guide for the decision in this case.

I think the plaintiff is entitled to recover for the cost of packing, crating, and drayage of his household goods from his residence in Washington to the place of storage in Washington, provided the cost thereof does not exceed the cost of such packing, crating, and drayage and the cost of transportation to Philadelphia by the most economical

means.

JONES, Judge, took no part in the decision of this case.

Reporter's Statement of the Case

THE NORTHWESTERN BANDS OF SHOSHONE INDIANS v. THE UNITED STATES

[No. M-107. Decided January 3, 1944]

On the Proofs

Indian claims; treaty of July 30, 1863.—Under the opinion of the court, March 2, 1942, 95 C. Cls. 642, holding that plaintiff bands were entitled under Article 3 of the Treaty of July 30, 1863, to recover $10,804.17, subject to deduction of offsets, if any, under the terms of section 3 of the Jurisdictional Act (45 Stat. 1407), which offsets, if any, were reserved for determination as provided in Rule 39 (a) of the Court of Claims; and upon a stipulation of the facts by the parties with reference to certain items of gratuitous expenditures by defendant for the benefit of plaintiff bands, totaling $10,816.48, which items were found to be proper offsets under the terms of the Jurisdictional Act; it is held that, since such offsets exceed the amount which the court had found to be due to plaintiff bands by defendant, plaintiffs were not entitled to a judgment against the defendant.

The Reporter's statement of the case:

Mr. Ernest L. Wilkinson and Mr. Herman J. Galloway for the plaintiffs.

Mr. Charles J. Kappler, Mr. Frank K. Nebeker, and Mr. Clinton D. Vernon were on the brief.

Mr. George T. Stormont, with whom was Mr. Assistant Attorney General Norman N. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief.

This case is now before the court on accounting under Rule 39 (a) for additional findings of fact and final judgment with reference to proper offsets, under the jurisdictional act, against plaintiff bands, with respect to the amount of $10,804.17 found by the court to be due plaintiffs in the findings of fact (finding 25) and opinion promulgated March 2, 1942. (See 95 C. Cls. 642.)

The court, having made the foregoing introductory statement, entered additional special findings of fact, as follows:

1. During the period from July 1, 1863, to June 30, 1878, the United States expended gratuitously out of its public funds for the use and benefit of the plaintiff bands the follow

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