Said coal, at the rate of $2.15 per ton, was worth $1,001.67. Deductions, at the agreed rate for the deficiencies mentioned, brought the price to $632.57, and this price was paid by the quartermaster, the coal being needed and used, notwithstanding its deficiencies. Thereafter, in the settlement of the quartermaster's accounts, the auditor suspended credit for $158.17, 25 per cent of the sum so paid, on the ground that the coal, having shown a greater ash content that 19 per cent, was subject to a further penalty of 25 per cent of the contract price, in addition to the deductions at sliding-scale rate for such deficiency.

Under a later contract (contract of May 17, 1913), R. B. Green delivered coal, the price of which is not here in question, and the quartermaster, to recoup himself for the credit disallowed by the auditor, deducted $158.17 from a sum admittedly due the contractor. Thereupon the contractor filed claim for the $158.17 thus deducted as a balance due him under the later contract of May 17, 1913, for coal actually delivered thereunder. The auditor, by settlement No. 522276, dated June 20, 1914, found and certified a balance of $158.17 due said contractor for coal delivered by him under the contract of May 17, 1913, but also found that—

"There is due from R. B. Green to the United States the sum of $158.17, which was paid him by Major B. B. Ray, disbursing Q. M. per vou. 24, abstract A, May, 1913, being an overpayment under contract of June 17, 1912, coal not being up to specifications."

His action was referred to the Secretary of the Treasury for further action looking to the enforcement of the set-off thus declared (act of Mar. 3, 1875, 18 Stat., 481).

The contractor has declined to assent to the set-off found by the auditor, and the papers have been referred to me for such action as is deemed proper.

I think the specifications aptly styled the 25 per cent deduction attempted to be authorized thereby as a "penalty." It was proper to agree that coal showing more than an agreed maximum deficiency should be rejected, and it was proper to agree that such coal, if accepted, should be paid for at a rate proportionately less than the agreed rate, but it was not proper to agree that in addition to the agreed proportionate reductions the contract price should be arbitrarily further reduced 25 per cent if the agreed maximum ash content was exceeded. Such an agreement would impose the same fixed deduction for a coal exceeding the agreed maximum content by 1 per cent, as for coal that analyzed 10 per cent more than such agreed maximum, and would be a penalizing provision that no court of law or equity would enforce.

The contracting officer made all the deductions from the contract price of the coal first above considered which the contract of June

17, 1912, fairly interpreted authorized, and there was no overpayment to the contractor involved in that transaction. The set-off found to exist in favor of the Government on such account is not a set-off, therefore, which could be enforced, in law or equity, and the auditor's action in declaring such set-off is reversed and disaffirmed.

LIMITATION ON PURCHASES OF PUBLIC VEHICLES.

The limitation found in the act of July 16, 1914 (Public, No. 127), relative to purchases of public vehicles, applies only to purchases of vehicles primarily used for carrying passengers.

Comptroller Downey to the Secretary of the Interior, July 31, 1914:

I have your letter of the 28th instant relative to the purchase of a mine rescue autotruck. As I understand your request, you desire an advisory opinion as to whether, in view of the provisions of section 5 of the legislative, executive, and judicial appropriation act approved July 16, 1914 (Public, No. 127), you will be authorized, when the pending sundry civil appropriation bill shall have been enacted into law, to purchase a truck of the character above mentioned under a provision of that bill reading as follows:

"For purchase of mine rescue, first-aid, and fire-fighting equipment and supplies for use in the operation of mine rescue cars and stations, $30,000

The sundry civil act not yet having been approved, it is not regarded as desirable to pass on the availability of an appropriation carried therein unless urgent reason for so doing appears, and therefore consideration would better be limited to the question as to whether such a purchase is otherwise prohibited by law, it being understood that in fact your doubt as to your authority to purchase such a vehicle from this appropriation arises because of a provision of the act of July 16, 1914, supra, as follows:

"No appropriation made in this or any other act shall be available for the purchase of any motor-propelled or horse-drawn passengercarrying vehicle for the service of any of the executive departments or other Government establishments, or any branch of the Government service, unless specific authority is given therefor

*

The legislation above quoted is a limitation or restriction on the purchase of passenger-carrying vehicles only, as an automobile or a carriage, and has no effect whatever on the purchase of vehicles primarily used for some other purpose, such as a freight truck.

It appears from your submission and the accompanying photograph of an autotruck of the kind in question, that such a vehicle is designed and primarily used to convey promptly to the scene of a disaster the elaborate fire-fighting equipment and mine rescue apparatus with which it is equipped, and that it is not at all adapted to

the carriage of passengers within the meaning of the act of July 16. 1914.

Accordingly, you are advised that you will not be precluded by the provisions of the act last mentioned from purchasing a mine rescue autotruck from the appropriation carried in the provision of the sundry civil bills quoted by you, if the same otherwise shall be available therefor.

PURCHASES OF STATIONERY IN THE FIELD WITHOUT ADVERTISING. An exigency arising from the negligence of an officer in not providing against it-that is, the outgrowth of a need which should have been foreseen and provided against-is not such an exigency as justifies the officer in making purchases in violation of the provisions of section 3709 of the Revised Statutes, and regulations in accordance therewith.

Comptroller Downey to the Secretary of the Treasury, August 4, 1914:

I have your letter of July 24, 1914, transmitting certain vouchers for stationery items purchased by officers of the Public Health Service, and internal-revenue officers, in the field, covering so-called exigency purchases, as follows:

(1) L. C. Smith & Bros. Typewriter Co., Seattle, Wash., for one typewriter ribbon, purchased Apr. 1, 1914.......

$0.75

(2) Lowman & Hanford Co., Seattle, Wash., for one pound of bank pins, purchased Mar. 9, 1914-

85

(3) Morey-Scollard-Gilman Co., Seattle, Wash., for one loose-leaf book at 40 cents, linen index at 75 cents, and 100 No. 10 envelopes at 45 cents_

1.60

The above purchases were made by B. J. Lloyd, surgeon of the Public Health Service, Seattle, Wash.

(4) James B. Laughlin, Public Health Service, Fort Morgan, Ala., covering payment to himself for one typewriter ribbon at 75 cents, purchased June 18, 1914___

$0.75

(5) Dalton Adding Machine Co., St. Louis, Mo., for one adding machine ribbon purchased Mar. 2, 1914, by E. B. Allen, collector of internal revenue, St. Louis, Mo----

1.00

1.50

.60

(6) Office Equipment Co., Louisville, Ky., for one Wales adding machine ribbon, purchased Apr. 22, 1914, by J. R. Gore, deputy collector of internal revenue in charge, Louisville, Ky----(7) Underwood Typewriter Co., Portland, Oreg., for one silk sheet No. 15, obtained by Milton A. Miller, collector of internal revenue for the district of Oregon, the date of purchase not being given‒‒‒‒‒‒ Relative to the first four items purchased by officers of the Public Health Service, the Chief of the Division of Printing and Stationery, on July 23, 1914, wrote the Secretary of the Treasury as follows: "The kinds of articles obtained by the field officers, with the exception of loose-leaf book and index, are stock articles carried by the Division of Printing and Stationery and supplied upon requisition within a reasonable time after receipt thereof. The loose-leaf book and index undoubtedly could have been obtained from the con

tractor by the Division of Printing and Stationery within three to five days after issuing the order. The officers in question are so located that supplies of the kind purchased could have been forwarded by mail and received within a few days, had request therefor been made upon the department, stating the necessity therefor. "The vouchers give a price of 75 cents for a typewriter ribbon, while the contract price to the Government is 20 and 21 cents each. The envelopes purchased at 45 cents per hundred are covered by Government contract at $1.67 per thousand. The contract price for bank pins ranges from 25 to 36 cents per pound, according to size, whereas the voucher states 85 cents per pound was paid. The voucher covering loose-leaf book and index does not give sufficient information for the Division of Printing and Stationery to state the contract price for a book similar to the one obtained.'

On the same day this officer wrote relative to the last three items purchased by officers of the internal revenue as follows:

"The kinds of articles purchased by the field officers are stock articles carried by the Division of Printing and Stationery and supplied upon requisition within a reasonable time after receipt thereof. The officers in question are so located that supplies of the kind purchased could have been forwarded by mail and received within a few days had request therefor been made upon the department, stating the necessity therefor.

"The voucher for one Dalton adding-machine ribbon states the price paid as $1, whereas the Government contract price for Dalton ribbons is $1.79 per dozen.

"The voucher for one Wales adding-machine ribbon is for $1.50, but the Government contract price for Wales ribbons is $2.30 per dozen.

"The voucher covering the silk sheet for the Underwood duplicator states a price of 60 cents, while the contract price to the Underwood Typewriter Co. (Inc.), of Washington, D. C., is 48 cents for the same size, and is the price paid by the department."

Treasury Department Circular No. 30, dated May 21, 1910, directs that, in making requisitions for stationery for outside service, publichealth officers shall make annual requisitions on April 1, and that collectors of internal revenue shall make requisitions twice a year, April 1 and October 1.

Paragraph 4 of said circular reads:

66

Supplemental or special requisitions should be made only when imperatively necessary and must be invariably accompanied by an explanatory note."

Treasury Department Circular No. 29, dated May 18, 1914, after directing specifically the manner of obtaining stationery, also provides:

"11. Field officers are charged with the responsibility of making requisitions in time to have the supplies on hand when required.

12. Exigency purchases not to exceed $5 may be made for stationery supplies when the articles are necessary for immediate use and where the service would be embarrassed if the supplies were not

obtained at once. This shall not be construed to cover the purchase of supplies which, by ordinary care and attention, can be obtained in the manner prescribed by preceding paragraphs."

Paragraph 649, Regulations United States Public Health Service,

reads:

"For such absolute necessary purchases and repairs as require immediate attention bills involving small amounts may be incurred without special authority; but it must be clearly established that the expenditure was immediately necessary, that the necessity therefor could not have been foreseen by ordinary care, that injury to the public interests or damage to public property would result from the delay necessary to procure authority for the expenditure, the nature of the exigency must be stated in full on the face of the voucher, without reference to statement in letter of transmittal."

The following statement appears upon each of the first three vouchers described:

"This expenditure was immediately necessary in plague' suppressive measures, Seattle, Wash., the necessity therefor could not have been foreseen by ordinary care, and injury to the public interests would result from the delay necessary to procure authority for the expenditure."

Upon the fourth voucher there is a statement which reads.

"This ribbon was immediately necessary, the one on hand being unserviceable, and those requisitioned in April not having been received. The purchase was a cash one, and reimbursement is requested."

There is a certificate upon each of the first four vouchers which reads that the articles were secured in accordance with No. 3 of the method of advertising, and under the form of agreement lettered "C," as shown on the reverse side thereof.

No. 3 of the method of or absence of advertising on the back of the voucher, reads:

"Without advertising, under an exigency of the service which existed prior to the order and would not admit of the delay incident to advertising.

"Form of agreement lettered 'C' reads: 'Under less formal agree

ment

No statement as to form of agreement is furnished.

There is no statement whatever upon any of the three vouchers covering purchases for the internal revenue showing that emergencies existed when the purchases were made.

With these facts I am requested to decide whether these seven vouchers, or any of them, should be paid from the appropriation "Stationery, Treasury Department, 1914" (37 Stat., 757), considered in connection with the regulations in force and section 3709 of the Revised Statutes.