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racks, La., where Batteries D and L, Third Artillery, are stationed, of Samuel G. Renshaw, who was employed under Orders 66, as follows:
• Under authority of the department commander, the serv. ices of Dr. S. G. Renshaw have been engaged as attending surgeon at this post during the absence of Asst. Surg. Junius L. Powell, U. S. A."
The whole amount of the claim is $172.50, and the SurgeonGeneral, through the Secretary of War, requests a decision “as to the legality of the charges appearing in this case for attendance at sick call on August 20; August 28 to September 1, inclusive; September 3; and September 5 to 12, inclusive, amounting to $37.50, on which days it appears that there were do patients.”
By special orders submitted with the papers in this case, it appears that Capt. Junius L. Powell, assistant surgeon, U. S. A., who was acting as post surgeon at Jackson Barracks, was granted a leave of absence for one month, with permission to apply for an extension of an additional month, and that in pursuance of this leave Captain Powell was absent from August 1 to October 1, 1895.
Under the act making appropriations for the current fiscal year, $160,000 is appropriated for the various purposes of tbe Medical Department, among them being “ Medical care and treatment of officers and enlisted men of the Army and Signal Corps on duty at posts and stations for which no other provision is made.” Under this appropriation Dr. Renshaw was employed by competent authority to perform all the duties of the post surgeon during the absence of the regular surgeon. Among the other duties required of the post surgeon is daily attendance at “sick call.” (Army Regulations, paragraph 1610, as amended by General Orders, No. 83, 1892.) The Surgeon-General states:
"At this call a medical officer or duly authorized substitute should be present, whether any sick appear or not; otherwise surgeon's call would be useless. The data adduced from the surgeon's call enter into the consolidated report of the post prepared every morning for the information of the commanding officer. Hence the employment of Dr. Renshaw by the commanding officer of Jackson Barracks to visit the post and be in attendance upon surgeon's call daily during the absence of the post surgeon appears to me to be eminently proper and just. It is also the duty of the medical officer at all regular military posts, and in his absence of the physician employed in his stead, to make sanitary inspections at these surgeon's calls of the hospital, as well as other parts of the post in general, which consume time and labor."
(See also in this connection paragraphs 1636, 1637, 1638, 1642, 1663, and 1676, Army Regulations of 1889.)
By General Orders, No. 75, Adjutant-General's Office, September 2, 1891, it was provided :
“ The following rates of charges for ordinary medical attendance by private physicians, under paragraph 1638 of the Regulations, must not be exceeded, and if the local charge per visit is less, the account must be rendered at the customary rates: For attending sick call, five men or less ........ .............. $2.50 For each man attended at sick call, in excess of five............... .50 For additional visit or sick call on same day, when necessary...... 2.00
“ In making arrangements for private physicans for medical attendance upon garrisoned posts or large detachments, it should be understood that while the rates above specified are not to be exceeded (unless in exceptional cases), it does not fol. low that this schedule of rates is necessarily to govern in cases where there is a large sick report; and tbat where the service is for several days or for an extended period, the amount for such services should not exceed in the aggregate $125 per month, or at that rate."
From this it appears that the civilian surgeon may charge $2.50 for attending sick call when there are five men or less, and an additional amount for each one in excess of five; consequently, he would be entitled to the $2.50 if only one man were sick, and inasmuch as that is true, I can see no reason why he would not be entitled to his remuneration for attend. ing, if he found no one sick. And further, the physician employed can not know, until he has called, whether or not his services will be required. The daily visit to the barracks is also required in order that the proper reports may be made in connection with the sick call and daily inspection.
It is therefore evident that he is entitled to be paid for this service, whether he finds any men sick or not, and it is proper to allow the amount claimed, as it falls within the limits provided in General Orders, No. 75, being less than $250 for two months' services. Respectfully, yours,
EDW. A. BOWERS,
Assistant Compiroller. The SECRETARY OF WAR.
IN RE CLAIM OF LIEUT. E. A. ANDERSON, U. S. N.,
FOR MEDICAL ATTENDANCE.
The determination of the Secretary of the Navy that expenses of an officer
of the Navy for medicines and medical attendance are incurred under circumstances entitling him to reimbursement (section 1586, Revised
Statutes) is conclusive. A claimant who accepts payment of one item of his claim allowed under
the Auditor's settlement is not, by section 8 of the act of July 31, 1894, precluded from obtaining a revision of such settlement as to the other items involved.
November 15, 1895. Under the authority given the Comptroller of the Treasury by section 8 of the act of July 31, 1894, to revise accounts, I have considered the account of Lieut. E. A. Anderson for the amount expended by him for medical attendance and medicines while stationed at New Orleans, La., the same being for a total amount of $163.60, of which $13.60 is for medicines and has been allowed by the Auditor, and the balance of $150 is for the services of Dr. Otto Joachim, which was disallowed by the Auditor on the ground that the same was not allowed by the Navy Department.
Subsequent to the decisions of the Navy Department of May 25 and July 11, 1895, declining to approve any other portion of Lieutenant Anderson's bill except that for medicines, the Acting Secretary of the Navy, on October 12, 1895, wrote requesting a review of the Auditor's decision disallowing the $150 for inedical treatment, as follows:
“In view of the inclosed statements of Lieutenant Ander. son, and .of his correspondence with the Surgeon General of the Navy, copies of which are also inclosed, in which he was informed that “officers on detached duty are entitled to reimbursement for necessary inedicines and medical treatment procured for themselves individually,' the Department is of the opinion that Lieutenant Anderson is entitled, under section 1586 of the Revised Statutes, to an allowance of the amount expended by him for medical treatment, viz, $150, and therefore approves the same.”
This letter removes the ground of the Auditor's disallowance, which was because
“The bill for treatment and operation of the specialist, amounting to $150, is disallowed by the Navy Department.”
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Although the Surgeon-General of the Navy still declines to recommend this allowance, the Secretary has reconsidered his former action and approved the allowance of the same. This action of the head of the Department must therefore be regarded as binding upon all (United States v. Eliason, 16 Pet., 291, 302), and had the matter been in this condition before the Auditor it is fair to assume that this sum would have been allowed.
From the letter of the claimant of December 15, 1894, and his subsequent one of January 8, to which replies of December 19 and January 12 were given by the Surgeon-General, it appears that Lieutenant Anderson took every precaution to bring himself within the provisions of section 1586 of the Revised Statutes, and that this is a proper charge against the Government.
The fact that he has accepted $13.60, due for the medicines purchased while sick at New Orleans, does not preclude him from obtaining a revision of this settlement, for although this sum forms a part of the total amount claimed, $163,60, yet it is not a part of the item on which he has accepted payment, the provision of the act of July 31, 1894 (28 Stat., 208), upon this point being
“Any person accepting payment under a settlement by an Auditor shall be thereby precluded from obtaining a revision of such settlement as to any items upon which payment is accepted."
The total amount claimed by Lieutenant Anderson is therefore allowed, less $13.60, the amount previously paid him.
Edw. A. BOWERS,
EXPENSE OF SINKING A WELL AT FORT MYER, VA.
The Secretary of War has anthority to extend the time for the execution
of a contract made on behalf of his Department when the interests of the Government are not thereby prejudiced, and particularly when its noncompletion within the time limited is not due to the negligence of
the contractor. The question whether a contractor has properly complied with the terms
of his contract in executing the work thereunder is one of fact upon which the decision of the head of this Department made in good faith is conclusive.
November 16, 1895. SIR: I am in receipt of the reference of the depot quartermaster, with your concurrence of October 23, 1895, together with the extensive records, relating to the contract for sinking a well upon the Fort Myer Military Reservation, Va., requesting my decision upon the points raised by you as to the legality of the claim of Levi Maish for sinking a well under his contract with your Department for so doing.
In March, 1893, the Secretary of War authorized “an expenditure of $8,000 from the current appropriation for army transportation to sink one or more wells at Fort Myer, Va., to a sufficient depth to obtain a supply of 50,000 gallons of water per twenty-four hours, the quality to be guaranteed to be as good and wholesome as that now supplied to the city of Washington."
On June 6, 1893, George H. Weeks, deputy quartermastergeneral, under authority from the Quartermaster-General, entered into a contract with the claimant Maish to sink the said well or wells. The important provisions of that contract are as follows:
(1) “ To sink one or more wells on the reservation, at points to be approved by the depot quartermaster, Washington, D. C., to a sufficient depth to obtain a daily supply of not less than 50,000 gallons of water per twenty-four hours, the quality to be as good and wholesome as the water supplied to the city of Washington; and in case more than one well should be neces. sary, all the wells to be so constructed as to admit of the use of one pumping station for all.
(2) "The work under the contract to be completed on or before June 30, 1894; and if not so completed within the timo stated, through any fault of the contractor, then the contractor to forfeit all claim for compensation under the contract, to remove all his apparatus from the grounds, and be debarred from further work under the agreement.
(3) “ Upon the complete execution of the contract in accordance with its terms, the contractor to be paid the sum of $8,000.”
The contractor, Maish, began work under his contract in the fall of 1893, bnt on June 30, 1894, had not succeeded in completing the contract to the satisfaction of the Quartermaster's Department, although in the meantime a well had been completed and examined by Lieutenant Macomb on June 28, 1894, after an attempt had been made, with the approval of the depot