344. In the first decision it was held that expenditures for the entertainment of the Brazilian naval authorities by officers of the Navy of the United States were not authorized by law, and there was no appropriation applicable thereto. On a reconsideration of said decision (p. 344) it was held that such expenditures were authorized in view of the clause "for such purposes as he may deem proper," found in the act of March 2, 1907 (34 Stat., 1177), appropriating funds for the contingent expenses of the Navy for the fiscal year 1907. (See said decisions and the decisions therein cited; see also 53 MS. Comp. Dec., 104, dated Apr. 7, 1910.)

The present case has been before the Judge Advocate General of the Army, and in a consideration of it by him reference is made to the decision of this office of July 18, 1913 (66 MS. Comp. Dec., 205). I have examined said decision, but I do not think that it has any bearing upon the question under consideration here. There it appeared that the automobiles were hired by a quartermaster under proper authority; that the appropriation provided for such hiring; that they were used by Army officers for the performance of official military duties; that the fact that the Secretary of War also rode in the automobiles did not affect the legality of the transaction or the official nature of the use; and that the use by the Secretary of War was official. In view of what was thus said it was held that the cost of hire was a proper charge against the appropriation for transportation of the Army for the fiscal year 1913 (act of Aug. 24, 1912, 37 Stat., 583), wherein were found provisions

66 # * for the purchase, hire, operation, maintenance, and repair of such harness, wagons, carts, drays, and other vehicles as are required for the transportation of troops and supplies, and for official, military, and garrison purposes. * * * That hereafter in the performance of their official and military duties officers of the Army are authorized, under such regulations as may be established by the Secretary of War, to use means of transportation herein provided for."

Identically the same provision as that first quoted is found in the Army transportation appropriation for the fiscal year 1914 (act of Mar. 2, 1913, 37 Stat., 716).

I fail to see wherein the hire of the present automobile can be regarded as for official or military purposes. The journey to Gettysburg, under the circumstances shown, was not in any way connected with military administration. The purpose of the hire of the automobile was not to get Maj. Connor of the General Staff to Gettysburg, but to extend a courtesy to the British officials. If Maj. Connor alone had been ordered to Gettysburg he would have been. entitled to mileage for the journey there and back and would have traveled by lines of common carriers. I do not think, therefore, that the provision supra, found in the appropriation for Army transpor

tation, is applicable to the hire of an automobile for the purposes shown in this case. I know of no other appropriation applicable to the case. I am of the opinion that the voucher must be disallowed. The action of the auditor is affirmed.

CONSULAR OFFICER AS ACTING CHARGÉ D'AFFAIRES AD INTERIM. A consul general authorized to perform diplomatic functions in the absence of the regular diplomatic officer is not entitled to the additional pay provided for the performance of such functions by section 1739, Revised Statutes, when absent from the country on leave granted him as consul general. Decision by Comptroller Downey, August 10, 1914:

Maxwell Blake, consul general at Tangier, Morocco, applied June 13, 1914, for revision of the action of the Auditor for the State and Other Departments in disallowing him, by settlement No. 14,123, dated May 16, 1914, pay claimed as acting chargé d'affaires ad interim while absent on leave, July 28 to September 22, 1913, inclusive, amounting to $305.56.

The statute (sec. 1739, R. S.) providing additional compensation for a consular officer authorized to perform diplomatic functions in the absence of the regular diplomatic officer is as follows:

"For such time as any consular officer shall be authorized to per form diplomatic functions, in the absence of the regular diplomatic officer in the country to which he shall be appointed, he shall be entitled, in addition to his compensation as such consular officer, to receive compensation for his services while so authorized, at the rate which would be allowed for a secretary of legation in such country." Mr. Blake was consul general at Tangier and was authorized by the Department of State to perform diplomatic functions in Morocco, there being no diplomatic officer therein.

The Department of State granted him, as consul general, a leave of absence, on his application, for 60 days, of which he availed himself from July 28 to September 22, 1913, inclusive, his application stating that during his absence he would be in southern Spain or in London.

Mr. Blake contends that during his absence on leave the work of the legation received the same attention at his hands through correspondence as if he had been personally present.

The Department of State, on administrative examination, disapproved Mr. Blake's claim for additional compensation for performing diplomatic functions during the period of his absence, and in explanation of the view of the department the counselor says:

"He was out of his jurisdiction, hence he could not and did not perform any diplomatic functions as contemplated by section 1739, Revised Statutes."

The statute is peculiar in some respects, due possibly to an inadvertent use of inappropriate words. "In the absence of the regular

diplomatic officer in the country to which he shall be appointed" is somewhat difficult of interpretation. If the clause as quoted is taken as a whole and as referring in its entirety to the regular diplomatic officer it is apparent that the word "in" is used where "from" would have been the proper word. Such an inadvertence is not as likely as the more common one of the omission of a comma, which, when required in construction, it is permissible to insert, and it is apparent that the insertion of a comma in the clause quoted after the word "officer" renders proper the use of the word "in," separates the parenthetical clause "in the absence of the regular diplomatic officer," and makes the words "in the country to which he shall be appointed" refer to the performance of diplomatic functions by the consular officer.

If the consular officer is entitled to the additional compensation claimed it must be because of the construction to be put on the words "while so authorized" in connection with the fact that when granted leave as consular officer there was no specific revocation of his authority to perform diplomatic functions.

In this particular case there was in fact no diplomatic officer, but the statute was not made for a particular case but for all cases of a class, and the intention was to provide for the performance of diplomatic functions by a consular officer so authorized when the regular diplomatic officer was absent and there was no other officer authorized to perform such functions.

If during the absence of a diplomatic officer from the country to which he was accredited he could carry the performance of diplomatic functions with him and perform such functions while absent exactly as if personally present, as Mr. Blake insists he did, there could be no necessity for any ad interim appointment, and hence no reason for the statute. This section, which is the authority relied upon for the payment sought, certainly did not contemplate that a diplomatic officer could perform his diplomatic functions while absent from the country to which appointed, and it is hardly reasonable to assume that a consul general performing the duties of a chargé d'affaires ad interim could do what a regular diplomatic officer could not, and the words "while so authorized" can not be separated in construction from the rest of the section and construed as broadening an otherwise limited authority, as they must be if this claim is to be allowed, for "while so authorized" limits the right to receive the additional compensation and that right is dependent on the performance of diplomatic functions under authority and also, as I believe, in the country from which the regular diplomatic officer is absent.

The auditor's disallowance is affirmed.

COMMENCEMENT OF CONTRACT PERIOD OR TIME.

A contract provision that the work shall be commenced "within five days from date of notice of award" and completed in a stated number of days thereafter is not effective unless a binding and effective contract is perfected within five days after notice of award.

Comptroller Downey to the President of the Board of Commissioners of the District of Columbia, August 11, 1914:

I am in receipt of your request of the 29th ultimo for my decision of a question growing out of contract No. 5526, dated March 19, 1914, with George Hyman, as follows:

Early in the year the Commissioners of the District of Columbia invited proposals for making certain excavations at the site of the new Central High School Building, and bids for doing the work in question were duly received, opened, and canvassed. March 9, 1914, George Hyman, one of the bidders, was advised by the secretary of the Board of Commissioners that his bid for doing the work proposed, at a price of $49,000, had been accepted, and fornial contract and bond were thereafter sent him for execution. The bond submitted by him for approval, and thereafter approved, was dated March 19, 1914, and this date was also inserted in the contract as date of contract. No statement is made as to whether or not the acceptance of the proposal was by the commissioners, or a majority of them; and if so, whether or not their action was by their signatures.

But though the contract was thus made to bear date as of March 19, 1914, it clearly appears that the same was not signed by any of the commissioners on that date. The corporation counsel did not approve it until March 22, 1914, and the commissioners each signed it some time thereafter-when, does not appear. The official minutes of the Board of Commissioners for March 30, 1914, contain this record:

"The commissioners sitting as a board ratified contract No. 5526 with George Hyman, dated March 19, 1914 "

and from this it would appear that said contract, though purporting on its face to be made and executed on March 19, 1914, was not in fact executed until March 30 or 31. George Hyman was notified April 1 of the commissioners' ratification of said contract.

Said contract, in terms, provided that the work covered thereby

was

"to be commenced within five (5) days after date of notice of accept ance of proposal, namely, March 9, 1914, and completed within ninety (90) working days thereafter."

And for any default in such completion the contractor agreed (par. 10 of the specifications attached to and made a part of said contract) to pay, in addition to inspection charges during any delay period,

liquidated damages at the rate of $50 per day for each day of delay not due to certain enumerated causes.

The contractor, it appears, began work shortly after receipt of notice of award. He claims to have been delayed by rainy weather and other excusable causes; but, allowing for delays so caused, the work was not completed within 90 working days from March 9, 1914-i. e., by June 29, 1914. But the contractor also contends that the contract time did not commence to run from that date or even from the date of contract, but from the date on which the contract was approved by the commissioners as a board; i. e., March 30, 1914, and that he is entitled to 90 working days from that date instead of from March 9, 1914, in which to complete the work. I am asked to decide from what date the contract time of 90 working days commenced to run.

The acceptance of the contractor's proposal did not of itself constitute a contract binding upon the District of Columbia, because the commissioners are by law forbidden from entering into other than formal written contracts for public works of the magnitude here involved. (District of Columbia v. Bailey, 171 U. S., 161.) And if such acceptance did not constitute a contract binding upon the District of Columbia, it, of course, did not operate to bind the other party. There was no contract, in fact, binding on either of the parties until the written contract dated March 19, 1914, was executed by the commissioners.

The time allowable, or to be allowed, for the completion of the work was stated in the specifications accompanying invitations for bids as well as in the contract proper. The quite evident intendment of the parties was that the contractor should have 90 working days, contract time, in which to complete the work; i. e., 90 days of time during which he was obligated to do and the commissioners to accept work done in accordance with the specifications.

And such being the case, the agreement to commence work within five days from notice of award was effective and binding only in the event that the commissioners within that time obligated themselves to accept and pay for work done as agreed; i. e., it was contingent on the making of a mutually binding contract within said five days. And, likewise, and for the same reason, the agreement to complete the work within 90 days from the specified time for its commencement was contingent on the making of a binding and effective contract before the time fixed for such commencement. As no binding and effective contract was made until March 30 (or 31?), 1914, the contractor was not required to commence the work until that date; i. e., until the contract was, in fact, fully executed by the commissioners. or to complete it until 90 working days from said date. Any work done by him prior to the date when the contract was in effect was at