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An analysis of the above rules promulgated by the Interstate Commerce Commission shows that no provision has been made to have the rules and regulations of a tariff embrace or include the routing, since they are shown as separate entities in Section 141.4, above. Also, Section 141.0(a) provides that all tariffs “must” conform to the rules in this part and Sections 141.4 (h) (i) and (k) (1) provide that tariffs "shall" contain "rules and regulations" and "routing."

Ordinarily, the words "shall" and "must" are considered mandatory in nature. See 80 Corpus Juris Secundum 136. It seems to follow, therefore, that the rules and regulations of a tariff may not be embraced or included in the routing, since the Interstate Commerce Commission rules provide that the "rules and regulations" must be shown in distinctive type and that the "routing" over which rates apply must be stated in such manner that such route may be definitely ascertained.

In the memorandum attached to your request for review, you urge that the holding in the case of Charles Ilfeld Company v. Southern Pacific S.S. Lines, 227 I.C.C. 291, should be followed in the present

The Charles Ilfeld case involved a situation in which a basis for class and commodity rates from and to points in specified States, including Massachusetts and New Mexico, was provided in Agent Curlett's Tariff, I.C.C. No. A-254. This tariff provided that rates from Boston, Massachusetts, to Las Vegas, New Mexico, were to be constructed on the basis of a combination of rates through certain named junctions, subject to the rates to Deming, New Mexico, as maximum. Agent Curlett's Tariff I.C.C. No. A-254 also provided that in applying the maximum rates the "rules and regulations" in the tariffs publishing the maximum rates must be observed, and page 103 of the same tariff, as amended, under the heading "Routing (See Note)," contained certain routing instructions as to which the Commission said (at page 294 of the cited report): "These routing provisions required that the routing restrictions provided in connection with the maximum rates to Deming must be observed to points subject to the Deming rates as maxima, such as Las Vegas ***." ***" Thus, the Commission held that the Deming rate, when applied as maximum, was subject to the routing applicable thereto shown in the tariff publishing the rate to Deming, but the observance of this routing was required because of a specific provision to that effect published under the heading of "Routing" in Agent Curlett's Tariff I.C.C. No. A-254, and not because routing instructions were covered by the term "rules and regulations." In other words, the routing shown in connection with the Deming rate was observed because the tariff which authorized the protection of the Deming rate as maximum so provided under the heading of "Routing," and by referring specifically to "routing restrictions," as such, rather than by con

sidering routing or routing restrictions as being covered by the term "rules and regulations." In this situation, the Charles Ilfeld case appears to support the Government's contention in the present case, because Western Trunk Line Tariff No. 385 contains no such reference as that referred to by the Commission at page 294 of the report of the cited case.

Your memorandum also refers to the case of Field Bros. v. Atchison, Topeka and Santa Fe Railway Company, 234 I.C.C. 799, which you seek to distinguish. In that case, Agent Peel's Tariff I.C.C. No. 2606 published class and commodity rates from Chicago, Illinois, to Roaring Springs, Texas, and provided that the charges should not exceed those applicable on a like shipment "under the provisions (including the 'Exceptions to General Application of Tariff') of Transcontinental Freight Bureau tariffs *** from the same points of origin to Deming, N. Mex." No "Exceptions to General Application of Tariff" were found in the tariff publishing the rate to Deming which were pertinent in connection with the movement there under consideration, so the Commission held that the Deming rate applied. The Commission said that the reference in the tariff publishing the rates from Chicago to Roaring Springs provided, "in effect, for a basing rate; and for convenience the amount of the Deming rate is stated to be the amount of the basing rate. Thus it does not partake in the nature of an intermediate rule in that its application does not depend on the routing to the key point. Restrictions on the rate to Deming do not modify the application of the basing rate to Roaring Springs, to which the Deming rate applies as maximum."

Both the Charles Ilfeld case and the Field Bros. case show that the contents of the tariff publishing the rate to Deming is imported into the tariff making reference thereto only to the extent to which it is referred to specifically, and if routing governing the rate to Deming is intended to be so imported it must be referred to as such, and not as a part of the tariff's rules and regulations.

In connection with the tariffs involved in the present case, it is noted that Imperial, Nebraska (No. 5945), Kearney, Nebraska (No. 5800), and Huntley, Nebraska (No. 7455), are stations on the Chicago, Burlington and Quincy Railroad which appear to be at the end of a branch or spur track. All of these stations are shown in item 10-L of Western Trunk Line Tariff No. 385 as being subject to the maximum rate application, and item 11-K of the tariff shows the basis for determining the maximum rates to and from these points. However, while maximum rates are provided for application to and from these stations on "dead-end" spurs or branch lines, such maximum rates apparently would be inapplicable in all circumstances if the maximum rates were subject to the routing provided therefor in

Transcontinental Tariff No. 2-R, since that routing, presumably, would not provide specifically for the movement to the end of the spur track or branch line and the succeeding backhaul necessary to place the shipment again on the direct route. In this connection, it is noted that a through rate does not apply over a route involving a backhaul, in the absence of specific authority for such application. Port Huron Elevator, Inc. v. Port Huron and Detroit Railroad Co., 280 I.C.C. 362; Peppard Seed Co. v. Louisville and Nashville R.R. Co., 243 I.C.C. 111, 113; J. G. Rogers v. New York Central R.R. Co., 284 I.C.C. 118. The foregoing seems to constitute another reason for believing that the maximum rate, when applied under the terms of Tariff No. 385, was not intended to be governed by the routing in Tariff No. 2-R; otherwise, the carriers appear to have performed a vain act in publishing the maximum rate provisions for application from and to many of the points named in Tariff No. 385.

In view of what has been said above, we conclude that the "routing instructions" in Transcontinental Freight Tariff No. 2-R, I.C.C. No. 1547, are a separate and distinct entity, and are not a part of the "rules and regulations" of that tariff which are referred to in Note C of item 11-K in Western Trunk Line Tariff No. 385, I.C.C. No. A-3020.

Our settlement of February 11, 1958, claim No. TK-597465, is on a basis consistent with the conclusion stated above and, accordingly, the disallowance of your claim is sustained.

[B-139864]

Contracts-Research Work Performed by National Academy of Sciences-Consideration Limitation-Actual Expenses Research contracts between Government departments and agencies and the National Academy of Sciences, which provide a fixed consideration and for an initial payment upon the execution of the contract, contravene the provision of section 3 of the act of March 3, 1863, 36 U.S.C. 253, which requires the Academy to perform research work for the United States on request, but without compensation above the actual cost of the services, and the advance payment prohibition in section 3648, Revised Statutes, 31 U.S.C. 529.

In view of the record which substantiates that the claim by the National Academy of Sciences for an amount in addition to the consideration fixed in the contract for performance of research work for the Department of Agriculture represents the difference between the total actual costs for the work and the payments made pursuant to the terms of the contract, payment of the claim will not be considered to be in contravention of the provision in section 3 of the act of March 3, 1863, 36 U.S.C. 253, which precludes reimbursement to the National Academy of Sciences for any compensation above the actual costs of services performed for the United States Government.

Although the consideration in research contracts executed by Government agencies and the National Academy of Sciences is required by section 3 of the act of March 3, 1863, 36 U.S.C. 253, to be limited to the actual expenses incurred for the work, a limitation on the maximum amount payable under the contracts may be included.

To the Secretary of Agriculture, August 3, 1959:

We have before us for settlement a claim of the National Academy of Sciences, Washington, D. C., for $25,055.28, representing an additional amount alleged to be due in connection with research services performed for the Department of Agriculture pursuant to contract No. A-1s-33826, dated June 30, 1953.

Under the terms of the contract the Academy agreed to compile for your Department the most reliable data available on the composition of domestic cereal grains and forages. The contract provided for payment of $27,500, of which $3,750 was to be paid in advance upon the execution of the contract, and the balance in periodic payments upon receipt and acceptance by the contracting officer, or his designated representative, of reports for the quarters ending December 31, 1953, June 30, 1954, December 31, 1954, and June 30, 1955. By supplemental agreement dated June 23, 1955, the contractor agreed to assemble, classify, and compile according to nomenclature the composition data for the additional consideration of $14,788, thus increasing the total contract cost to $42,288. The time for completion of the contract was extended to June 30, 1957. Following completion of the contract the National Academy of Sciences presented a claim in the amount of $25,055.28 to the Agricultural Research Service, Department of Agriculture, which claim represents the difference between the total actual costs incurred in the performance of the contract and payments made under the contract and the supplement thereto. Payment of the claim was denied administratively.

The National Academy of Sciences operates as a non-profit scientific institution, having been established by the act of March 3, 1863, 12 Stat. 806, 36 U.S.C. 253, which provides, in pertinent part (section 3), that

*** the Academy shall, whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art, the actual expense of such investigations, examinations, experiments, and reports to be paid from appropriations which may be made for the purpose, but the Academy shall receive no compensation whatever for any services to the Government of the United States. [Italics supplied.]

It is manifest, in view of the above-quoted portion of the act of March 3, 1863, which requires the Academy to perform research work for the United States upon request, but without compensation above the actual cost thereof, that the contract here involved, which provides for a stated consideration, was improperly executed-both on the part of the Academy and the Department of Agriculture. In addition, the provision for the initial payment of $3,750, in advance of the rendition of service, is in contravention of section 3648, Revised Statutes, 31 U.S.C. 529.

The matter is brought to your attention with the suggestion that, should your Department require further research work on the part of the National Academy of Sciences, the contracts covering such work limit the consideration to be paid thereunder to reimbursement of the Academy's actual expenses, with a limitation, if desired, on the maximum amount payable under the contracts. See B-4252, June 21, 1939.

Regarding the instant claim, the record supports the contention of the claimant that the sum of $25,055.28 represents the difference between the total actual costs incurred and the payments which were made pursuant to the terms of the contract. Accordingly, the Claims Division of our Office is today being instructed to certify that amount for payment.

[B-140172]

Civilian Personnel — Compensation formance Other Than Consecutive Weeks

Night Work-Per

Night work which is determined in advance to be required on the first three days of every other workweek by employees who normally perform duties in the daytime may be regarded as regularly scheduled work for payment of night differential compensation under section 301 of the Federal Employees Pay Act of 1945, 5 U.S.C. 921, notwithstanding that such night work is to be performed every other week rather than on at least one day of each of two consecutive workweeks. 36 Comp. Gen. 657, amplified.

To the Secretary of the Treasury, August 4, 1959:

By letter of July 2, 1959, the Acting Secretary requested our decision as to whether certain night work for payroll employees in the Internal Revenue Service which is scheduled for the first three days of every other workweek may be regarded as "regularly scheduled work" for purposes of payment of night differential compensation under section 301 of the Federal Employees Pay Act of 1945, as amended, 5 U.S.C. 921.

The Acting Secretary states that in the Internal Revenue Service it has been necessary in the operation of the mechanized payroll to change the tour of duty for certain employees who normally perform duties in the daytime to embrace night work between the hours of 4:00 p.m. to 12:30 a.m. This night work is regularly scheduled for three days of each biweekly pay period. However, doubt is expressed whether night differential compensation is properly payable for the hours of work performed between 6:00 p.m. and 6:00 a.m. in view of our decision in 36 Comp. Gen. 657, which indicates that "regularly scheduled work" for purposes of night differential compensation, must be scheduled on at least one day of each of two consecutive work weeks.

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