among employees of the Patent Office such employees as may be actually necessary for the service of the respective divisions of the said branch office; "and to select and employ from time to time at San Francisco such additional persons as the exigencies of the work there may require." The act further provides that: thus designated "All persons from the Patent Office * for service at San Francisco shall receive no compensation other than their regular salaries, but while absent from Washington, District of Columbia, and engaged upon the business of the aforesaid branch office shall be allowed their actual and necessary traveling expenses, together with a per diem allowance in lieu of the cost of subsistence to be fixed by the Secretary of the Interior * * not to exceed $3 per day." Mr. Osborn was employed as an $1,800 clerk in the Patent Office, and was selected by the Commissioner of Patents as representative of the Patent Office at the exposition. Under date of December 23, 1914, the Secretary of the Interior gave him an appointment as chief clerk in charge of the branch patent office at a salary of $275 per month, commencing January 1, 1915. Mr. Osborn resigned his clerkship in the Patent Office to take effect at the close of business December 31, 1914, with the understanding that he would be reinstated upon the Patent Office rolls upon the termination of his duties under the temporary appointment which he accepted. The Secretary of the Interior is authorized by the statute to designate from among the employees of the Patent Office such employees as may be actually necessary for the service of the respective divisions of the branch office, and to select and employ from time to time at San Francisco such additional persons as the exigencies of the work there may require. The clear intent and effect of the statute is that the force of the branch office shall be made up of Patent Office employees designated for that service, and that additional persons may be employed only for the purpose of meeting exigencies of the work which may arise at San Francisco. The position of chief clerk in charge of the branch office is clearly not an exigency employment, and is therefore not one which the Secretary is authorized to fill by additional, or outside, employment. If Mr. Osborn is designated for service in the branch office at the exposition, payment to him must be limited to his salary as clerk in the Patent Office and the traveling expense and per diem provided by the statute. You are accordingly not authorized to pay the compensation claimed by him under appointment as chief clerk in charge of the branch office. AUTHORITY TO PAY SUBCONTRACTOR OR ASSIGNEE OF CONTRACT. Payment to persons other than original contractor for transportation of the Organized Militia, District of Columbia, authorized. For facts and discussion of questions involved, see decision. Comptroller Downey to the Secretary of War, January 21, 1915: The Quartermaster General, United States Army, by your authority, requested the 7th instant, upon facts presented by him as hereafter stated, my decision as to whether payment can be made to the so-called subcontractors of William P. Lawson in connection with the movement of the Organized Militia of the District of Columbia and its impedimenta from Washington, D. C., to Virginia Beach, Va., and return, in July and August, 1914, on the occasion of the encampment and maneuvers with the Regular Army, and if so, upon what basis. The question is also asked whether any cognizance should be taken of a claim of W. M. Yearley amounting to $386.36 for food furnished Mr. Lawson in connection with the movement of the militia as aforesaid as filed by the United Merchants of Baltimore, Md. In paragraphs 2 and 3 of his letter the Quartermaster General says: "2. Contract for this movement was entered into between William P. Lawson and Maj. Alfred P. Robbins, quartermaster, National Guard, District of Columbia, by which the contractor agreed to furnish transportation for the troops and impedimenta from Washington, D. C., to Virginia Beach, Va., and return, for a consideration of $3,750. The travel of the troops was to be via street car from Thirteenth Street and New York Avenue to Chesapeake Junction, thence Chesapeake Beach Railway Co. to Chesapeake Beach, thence steamboat (steamer Dreamland) to Norfolk, and thence Norfolk & Southern Railway from Norfolk to Virginia Beach. The troops were to be returned via the same route. "The impedimenta was to be sent from Washington, D. C., to Norfolk, Va., via steamboat (Southern Transportation Co.) and Norfolk & Southern Railway Norfolk to Virginia Beach; the impedimenta was to be returned via the same route. "3. In second indorsement from the quartermaster, National Guard, under date of August 21, 1914, inclosed with these papers, it is stated that the proposal to pay accounts of subcontractors direct is the result of mutual agreement between the principal contractor and the said subcontractors made before delivery of transportation facilities and performance of service, and the contractor has paid the Washington Railway & Electric Co. $134 for street-car service, the Chesapeake Beach Ry. $800 for service from Chesapeake Junction to Chesapeake Beach and return, and it would also appear from information contained in letter from Arthur D. Foster, attorney at law, under date of October 2, 1914, that the contractor paid the Southern Transportation Co. for freight charges on the impedimenta from Washington, D. C., to Norfolk, Va." The Quartermaster General reports outstanding subcontractors' claims as follows: "There are now outstanding subcontractors' claims as follows: Claim of Mr. John C. Bosley, owner of the steamer Dreamland, for use of this steamer. $2,800.00 Norfolk & Southern Ry., for transportation of these troops from Norfolk to 320.00 225.00 589.46 3, 934. 46 Claim of Southern Transportation Co., for the return transportation of the Or a total outstanding claim of.............. The papers submitted indicate that one of the claims of the Norfolk Southern Railroad is $585.46 and not $589.46, and if such be the case the total outstanding claims amount to $3,930.46, or $4 less than stated in the report of the Quartermaster General. The submission of this case here at this time is because of the subcontractors' inability to secure a settlement of their claims from Mr. Lawson, the contractor, and it is alleged that the contractor has steadfastly refused to execute the necessary vouchers for the payment to himself of the amount agreed upon in his contract, thus refusing either to make any claim for his own benefit or to take any steps to procure payment for those who rendered the service. The proposal to pay the subcontractors direct appears to result, in part at least, from a mutual agreement or understanding between the principal contractor, the subcontractors, and the quartermaster of the District of Columbia Militia, made before the rendition of service. It is probably because of this understanding and because of the fact that in some instances pursuant thereto he has given "orders" which have been "accepted" and because of the further fact that there is no remaining profit in it for him that the contractor refuses to do anything more about the matter. The case of Mr. Bosley is one of those within the understanding had and in which an accepted order figures and may well furnish the basis for consideration of the questions involved. Under date of July 29, 1914, Mr. Lawson addressed Maj. Robbins, quartermaster, District of Columbia Militia, as follows: "Reference contract dated July 13, 1914, for transportation of the National Guard of the District of Columbia from Washington, D. C., to Virginia Beach, Va., and return between the dates of July 25 and August 11, 1914, I hereby authorize you to deliver to Mr. John C. Bosley, of the steamer Dreamland, the sum of twenty-eight hundred dollars ($2,800) for and on account of the use of the said steamer Dreamland." This letter is indorsed by Maj. Robbins over his official signature, as follows: Accepted July 29, 1914. Contractor notified of acceptance July 29, 1914." The movement of troops to Virginia Beach was, under the contract, to begin on July 31, 1914. This case develops a peculiar situation. It appears that the person who originally contracted to render the service possessed no transportation facilities of his own. He employed others to render the service throughout. It has been represented to this office that some of those so employed refused to render the service until they were assured by the militia authorities that the service they rendered would be paid for by the Government direct. In the case of Mr. Bosley it is established that he refused to furnish the boat until assured he would be so paid and he understood that he was dealing directly with the Government through Maj. Robbins. Their bills have not been paid by the original contractor, Mr. Lawson, and so far he has refused to do anything looking to a settlement with the subcontractors, although five months have elapsed since the rendition of the service. Under such circumstances it seems to me it is time for the administrative authorities to take the matter in hand and do what simple fairness and justice to the so-called subcontractors would seem to demand if it can be done with safety to the Government and without a violation of law. As a strictly legal proposition probably payment should only be made to Mr. Lawson, the original contractor, and the case might easily be disposed of on a technical holding, but consideration of the whole case on the law and the facts is demanded, that justice be done if possible, and this is particularly so since the representative of the Government, acting in good faith no doubt, is at least partially responsible for existing conditions. So far as the law is concerned the view seems to be entertained that possibly sections 3477 and 3737 of the Revised Statutes stand in the way of an adjustment otherwise than with the original contractor. Section 3477 provides that all transfers and assignments of any claim upon the United States shall be absolutely null and void. Continuing consideration of the matter particularly from the standpoint of Mr. Bosley's claim, it is quite apparent that the "order" given him and accepted by Maj. Robbins on the 29th, two days before the rendition of the service, was not an assignment of a claim, as claims are defined by the statute. (Hobbs v. McLean, 117 U. S., 567.) Section 3737, the section particularly for consideration in this connection, is as follows: "No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States." There are numerous decisions of the courts construing this statute, the conclusion generally reached being that it is in the interest of the Government and that under it the Government is free to treat a transferred contract as annulled or to recognize the assignment. An opinion of the Attorney General (16 Op. Atty. Gen., 277) states the rule as follows: "That statute is intended only for the benefit of the United States; and while it is said that such transfer shall cause the annulment of the contract or order transferred, it is intended only that it shall do so in case the United States declines to recognize such transfer. While, therefore, the United States may avail itself of such transfer to annul the contract, it is not compelled to do so." In Dulaney v. Scudder (Circuit Court of Appeals, 94 Fed. Rep., 6) a number of cases are cited and it is said that "The Government was free to treat it (the contract) as annulled, or to recognize the assignment." In the case of Burck v. Taylor (152 U. S., 634) the court was considering the rights of an assignee of a contract under the conditions of the contract itself but finds occasion in that connection for construing section 3737 and considering the reasons for its enactment and evidently finds an analogy between the provisions of that section as construed and a provision in the contract in question to which the State of Texas was a party. The particular analogy seems to be in the element of consent to an assignment, the State under the contract evidently standing in the same position thereunder as that in which the Government is placed under section 3737 as construed. And, without quoting, it may be said that the purpose of the statute and of the provision in the contract against assignment without consent are stated by the courts in strikingly similar language. Speaking of the effect of the assignment of the contract and the consent of the State thereto, the contract prohibiting assignments without the consent of the State, the court said: "In other words, by consent of the parties, and in accordance with the express provisions of the contract, before the work was done, Abner Taylor, the defendant, was substituted for Schnell as the contractor. It was precisely the same as though the contract with Schnell had been surrendered and a new one made with Taylor. The contract was still executory; nothing had been earned by Schnell, and nothing was due to him. He steps out of the contract and Taylor steps in. Taylor is accepted as the contractor and proceeds with the work." Mindful of the fact that a contract provision is involved in one case and a frequently interpreted statute in the other, do we not find the conclusion of the court in that case fully applicable to the one under consideration? The final arrangement made for the use of the steamer Dreamland was with the consent of all parties, the original contractor |