actions, and methods of business of their respective offices as he may from time to time require of them."

Before the enactment of the Budget and Accounting Act, the Comptroller of the Treasury had the power to "prescribe the forms of keeping and rendering all public accounts," except those relating to the Postal revenues, Act of July 31, 1894, c. 174, sec. 5, 28 Stat. 206, but I am unable to find any statute prior thereto authorizing the Comptroller of the Treasury to prescribe the terms or conditions of a bill of lading contract which the various departments and establishments of the Government should make, nor does the said Budget and Accounting Act confer such authority upon the Comptroller General.

Under sections 309 and 311 (f), supra, the Comptroller is authorized to prescribe by General Regulations the forms to be used in "Administrative appropriation and fund accounting in the several Departments and establishments," but no authority is granted by these provisions to limit by Regulation or by the adoption of Standard Forms the authority vested in other officers of the Government to make lawful contracts in its behalf. This conclusion appears to be quite obvious on the face of the statute. It is as clearly supported by the legislative history. Section 309 was not in the original Budget and Accounting bill, H. R. 9783, 66th Cong., 2d Sess., as passed by the House. This Section originated in the Senate. The Report of the Committee recommending the inclusion of section 309 contains the following:

"It has been repeatedly pointed out that the principal defects of the Government accounting system result from the absence of unified control and from the diffusion of accounting authority and responsibility among numerous officials each of whom has effectually exclusive jurisdiction in his own field. Any satisfactory system of Government accounting should have as its underlying principle the investment of final and exclusive authority and responsibility over all accounting and auditing operations in a single official; and this principle should be applied to the furthest extent consistent with the exercise of an undivided control over strictly administrative matters by the heads of departments and establishments.

"The Government has become notorious for lack of uniformity in its accounting methods.

*

"If new provisions are to be made for the accounting establishment of the United States at this or any other time, they should accomplish a concentration of authority over all Federal accounting activities. They should confer upon a single official the power to prescribe and to supervise departmental methods of bookkeeping, and of examining claims and accounts of fiscal officers

** *

"It is the feeling of the Committee that the House Bill is deficient in that it accomplishes none of these things. The committee has, therefore, inserted in the bill additional provisions which it believes necessary to bring about a proper reorganization of the accounting system of the Government

"The committee bill confers upon the General Accounting office the authority and power to prescribe and to supervise methods of accounting in the departments; to prescribe and supervise the methods employed in the administrative examination of accounts and claims; and to exercise in general a control over all the accounting procedures of the Government

*

"In the committee bill the comptroller general of the United States is given exclusive jurisdiction over all matters relating to auditing and accounting forms, systems, and procedure Senate Rept. No. 524, 66th Cong., 2d

Sess."

*

**

The question whether in the exercise of his powers as an accounting officer the Comptroller General may require by General Regulation inclusion of clause 7 in the Standard Form of Government Bill of Lading depends upon whether the clause relates merely to the form in which agreement is expressed, or affects the substance of the agreement itself. It would perhaps suffice to say that the refusal of the carriers to receive shipments under the Standard Form, which, being different from the commercial form approved by the Interstate Commerce Commission, can not be imposed upon them against their will, at least in the absence of statutory authority, concludes the point that the inclusion of clause 7 is dependent upon negotiation and agreement; but it is only

necessary to read clause 3 in connection with clause 7 to see how vitally the bargain is controlled and prescribed by the adoption of the Standard Form. Clause 3 provides that the rates shall not exceed the rates charged on commercial shipments, while clause 7 requires a change of substance in the contract upon which such shipments are carried. This is asking something for nothing, and the carriers are not required to assent to such conditions merely because, in the exercise of his powers as an accounting officer, the Comptroller General has prescribed a form which contains them.

A bill of lading is primarily a contract between the carrier and the shipper (St. Louis, Iron Mtn. So'n. Ry. v. Starbird, 243 U. S. 592, 597) and unless the Government is content to accept the agreement in substance prescribed for commercial shipments by the Interstate Commerce Commission, pursuant to sec. 20 of the Interstate Commerce Act, the terms. of shipment are necessarily a matter of negotiation between the parties. Of course, the bill of lading is an instrument which in addition to evidencing the contract of carriage must serve a secondary purpose in connection with Government accounting, and for such purposes no doubt the Comptroller General may prescribe its form, provided he does not undertake to impose contractual obligations upon the parties which they are legally entitled to negotiate. In its use for the purpose of "administrative appropriation and fund accounting in the several departments and establishments" of the Government, the form of bill of lading, after its contractual terms and conditions have been agreed upon, is, by virtue of sec. 309 of the Budget and Accounting Act, subject to the approval of the Comptroller General as a form for accounting purposes; but such approval can not in any way extend to the contractual obligations, which the parties are entitled freely to negotiate without dictation from the Comptroller General, whose function is that of an accounting officer.

Congress has not authorized the Comptroller General to negotiate or prescribe in advance the terms of such contracts, but on the contrary has by legislation specially charged the Secretary of War with that duty in so far as the War Department is concerned. The authority of the Secretary of

War in this regard is defined by the following statutory provisions.

Section 220, Revised Statutes (U. S. C., Title 10, sec. 1363), provides:

"The transportation of troops, munitions of war, equipment, military property, and stores, throughout the United States, shall be under the immediate control and supervision of the Secretary of War and such agents as he may appoint." The Act of June 4, 1920, c. 227, subchap. 1, sec. 9 (41 Stat. 766; U. S. C., Title 10, sec. 72), provides that the Quartermaster General, under the authority of the Secretary of War, shall be charged with "the transportation of the army by land and water, including the transportation of troops and supplies by mechanical or animal means; with the furnishing of means of transportation of all classes and kinds required by the Army; and with such other duties not otherwise assigned by law as the Secretary of War may prescribe: *

The Act of July 5, 1884, c. 217 (23 Stat. 111; U. S. C., Title 10, sec. 73) provides:

"The Quartermaster General and his officers, under his instructions, wherever stationed, shall receive, transport, and be responsible for all property turned over to them, or any one of them, by the officers or agents of any Government survey, for the National Museum, or for the civil or naval departments of the Government, in Washington or elsewhere, under the regulations governing the transportation of Army supplies, the amount paid for such transportation to be refunded or paid by the bureau to which such property or stores pertain."

Paragraph 2a, AR 30-905, provides:

"The Quartermaster General is responsible for the supervision and direction of all matters connected with the transportation of the personnel and property of the Army by land and water, and is also designated as War Department traffic manager, and will exercise jurisdiction over all transportation activities of the War Department.'

The promulgation of Regulation 69 in so far as it interferes with the exercise of the statutory authority thus granted to the Secretary of War is not an exercise of the

power to make regulations for accounting purposes granted to the Comptroller General, but is in effect an attempt to limit the authority of the Secretary of War, expressly granted by Act of Congress, and therefore, to this extent at least, is invalid. (United States v. United Verde Copper Co., 196 U. S. 207, 215; Williamson v. United States, 207 U. S. 425, 462; United States v. George, 228 U. S. 14, 20; Intern'l Ry. Co. v. Davidson, 257 U. S. 506, 514.)

I am, therefore, of the opinion that there is nothing contained in this Regulation which can prohibit the exercise of the authority of the Secretary of War to negotiate lawful contracts for the furnishing of "means of transportation of all classes and kinds required by the Army."

The question remains, however, as to whether, in the exercise of this authority, the Secretary of War may cancel clause 7 of the Government bill of lading, as prescribed by Regulation 69 of the Comptroller General, and make shipments under the form prescribed in the Regulation with this clause eliminated. The legal effect of the elimination is to bring into operation clause 2, and thereby to import into the contract of carriage the limitations contained in commercial bills of lading approved by the Interstate Commerce Commission under sec. 20 of the Interstate Commerce Act, which limit the time in which suits may be brought against the carrier and impose as a condition of suit the presentation of claim within a limited period of time. The question whether such limitations may be imposed upon the Government's right to sue is one which has been the subject of judicial consideration and determination. The question was presented and decided by the Circuit Court of Appeals for the Fourth Circuit in United States v. Seaboard Air Line Ry. Co., 22 F. (2d) 113, where it was held that a bill of lading which imposed the limitations contained in the commercial bills of lading approved by the Interstate Commerce Commission was binding upon the Government. In M. K. & T. R. R. Co. v. United States, 62 C. Cls. 373, and in American Ry. Express Co. v. United States, 62 C. Cls. 615, the Court of Claims has expressed opinions to the contrary.

The question having thus been considered in the courts, and a conflict of judicial decision thereon having arisen,