such service so as to include deliveries to vessels temporarily passing through the territory covered by such a post-office. It follows, therefore, that if there has been made by Congress an appropriation in terms broad enough to authorize the payment of the expenses of such a delivery service the postmaster at Detroit may receive credit for the vouchers inclosed with your letter, provided they are otherwise correct. In the act making appropriations for the postal service, of February 28, 1895, the following appropriation was made: "For free delivery service, including existing experimental free-delivery offices, twelve million seven hundred and ninety thousand two hundred and eighty-three dollars and sixty-four cents." (28 Stat., 691). This appropriation is clearly broad enough to authorize the payment of any expenses properly incurred "for free-delivery service." As, for the reasons above stated, the extension of the free delivery service at Detroit, so as to include delivery to vessels in the Detroit River, was authorized, payment thereof may be made from the said appropriation. In regard to the particular vouchers, no decision can be made by the Comptroller at the present time, as the account in which they are contained has not yet been acted on by the Auditor, the jurisdiction of the Comptroller at present being confined to an approval, disapproval, or modification of the decision made by the Auditor in regard to the use of the appropriation for the free-delivery service for the payment of the expenses of the extension of such service in the manner above described. Whether these vouchers are proper depends upon the terms of the contracts under which they were made. Attention, however, is invited to the fact that repairs to property not owned but rented by the Government are unusual, although if a proper contract were entered into for the payment thereof it is not seen how such a contract would be illegal. The vouchers are herewith returned. Respectfully, yours, R. B. BOWLER, Comptroller. The AUDITOR FOR THE POST-OFFICE DEPARTMENT. BONDS OF STOREKEEPERS AND GAUGERS, INTER- A person holding the office of storekeeper and gauger in the revenue service, and under bond as such officer, is not entitled to compensation when assigned to the separate duties of a storekeeper or a gauger, as authorized by section 64 of the act of August 28, 1894, until he has executed the bond therein required. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, December 31, 1895. SIR: I am in receipt, by your reference, of a letter from the Commissioner of Internal Revenue, asking whether an officer holding the combined office of storekeeper and gauger, and who is under bond as such, is required to give a new bond before he can legally discharge any of the separate duties of a gauger to which he may be assigned under the provisions of section 64 of the act which became a law August 28, 1894 (28 Stat., 567), and be paid for his services under such assignment. It is well established law that a de facto officer is not entitled to claim compensation for services rendered by him. It is also equally well established that when an act requires the giving of a bond by the appointee before entering upon the duties of his office, such bond is a prerequisite to a complete investiture of the office, and that the person acting without giving such bond is merely a de facto officer. (United States v. Le Baron, 19 How., 73-78; Dainese v. United States, 15 C. Cls. R., 64-79; 10 Opin. A. G., 250. Accounts of Lewis H. Percival, Bowler's 1st Comp. Dec., 282.) The combined office of storekeeper and gauger was authorized by the provisions of the appropriation act of August 15, 1876 (19 Stat., 152), as follows: "That the Secretary of the Treasury may, upon the recommendation of the Commissioner of Internal Revenue, impose the duties of storekeeper and gauger upon one officer, where the amount of spirits produced at the distillery to which such officer may be assigned is not sufficient, in the judgment of the Commissioner, to warrant the employment of two officers to perform the separate duties of storekeeper and gauger. The Secretary of the Treasury may issue a commission to such officer as storekeeper and ganger. but the compensation for his services as storekeeper and gauger shall be that of storekeeper only. And 1 the said officer shall, before entering upon the discharge of such duties, give a bond in the penal sum of not less than five thou sand dollars for the faithful performance of the combined duties of storekeeper and gauger." Under that act a storekeeper and gauger could not be assigned to perform the duties of a gauger only, and was, by the terms of the act, only authorized to be assigned to such distilleries as, in the judgment of the Commissioner, would not warrant the employment of two officers to perform the separate duties of storekeeper and gauger. Section 64 of the act which became a law August 28, 1894 (28 Stat., 567), is as follows: "That the officer holding the combined office of storekeeper and gauger, under the provisions of the legislative, executive, and judicial appropriation act, approved August fifteenth. eighteen hundred and seventy-six (Nineteenth Statutes, page one hundred and fifty-two), may be assigned by the Commis sioner of Internal Revenue to perform the separate duties of a storekeeper at any distillery, or at any general or special bonded warehouse, or to perform any of the duties of a gauger under the internal-revenue laws. And the said officer, before entering upon the discharge of such separate duties, shall give a bond to be approved by the Commissioner of Internal Revenue for the faithful discharge of his duties in such form and for such amount as the Commissioner may prescribe." It will be seen that this section conferred more onerous and responsible duties upon the person who held the combined office of storekeeper and gauger, authorizing him to perform the separate duties of a storekeeper at any distillery or bonded warehouse, or to perform any of the duties of a gauger, thus authorizing him to perform the duties of a gauger at a distil. lery of any size, no matter how large. It was then specifically provided that before entering upon the discharge of such separate duties the person holding the combined office of storekeeper and gauger should give a bond in the form prescribed by the Commissioner of Internal Revenue. An examination of the bond given by a combined storekeeper and gauger under the act of August 15, 1876, shows that the condition thereof is that the appointee shall "faithfully discharge his duties as such internal-revenue storekeeper and gauger," while the condition of the bond required of such an officer since he has been authorized to perform the separate duties of a storekeeper or a gauger is that he "shall faithfully discharge his combined duties as such internal-revenue store keeper and gauger, and also the separate duties of a storekeeper or gauger to which he may be assigned." In view of the radical changes made by section 64 of the above-cited act in the duties of a combined storekeeper and gauger, it is extremely doubtful whether the sureties on a bond given in the old form could be held for a default of a storekeeper and gauger while assigned to perform the separate duties of a gauger. It is no doubt for this reason that it is required by said section 64 that a storekeeper and gauger before entering upon the discharge of the separate duties of a storekeeper or gauger shall give bond for the faithful discharge of his duties in such form as the Commissioner may prescribe. For these reasons I am of the opinion that a combined storekeeper and gauger, if assigned to perform the separate duties of a gauger without giving a new bond in the form now required by the Commissioner of Internal Revenue for such officers, would be while performing such separate duties at most a de facto gauger, and would not, therefore, be entitled to receive from the Government compensation for the services rendered by him. Respectfully, yours, R. B. BOWLER, Comptroller. The SECRETARY OF THE TREASURY. CLAIM FOR VALUE OF BOAT LOST IN THE SURVEY OF THE COLORADO RIVER. Where an officer hires a boat in making preliminary examinations in connection with river and harbor work, and the same is lost in such work, without fault or negligence on the part of the officer, by an inevitable accident, it is a case of locatio rei, and under the law of bailments the United States are not liable for the value of the property lost in the absence of a contract assuming such responsibility. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, January 6, 1896. SIR: I have, by your order, the reference of the chief clerk of the War Department of the request of Lieut. Charles L. Potter for authority to pay for a boat lost in making a preliminary examination of the Colorado River in accordance with the provisions of the river and harbor appropriation act of August 18, 1894 (28 Stat., 364), the cost of the same being stated as "not to exceed $128." From the statement of Lieu. tenant Potter it appears that the boat was hired by him for descending the Colorado River in performance of the above service and was lost in the rapids of that river, without fault or negligence on his part, by an inevitable accident. It appears that this case is one of bailment, known to the law as locatio rei. Under the well-settled principles of the law of bailments, in the absence of provisions in the contract fixing specifically the responsibility of the bailee, the degree of care imposed by law upon him depends upon the circumstances of each case, and in general losses resulting from inevitable accident can not properly be charged to the bailee. Where a loss results from the use of property in accordance with the purpose for which it was hired, the bailor can only recover by proving that the loss was due to the negligence of the bailee. In the case of McEvers v. Steamboat, etc. (22 Mo., 187), a somewhat similar state of facts to those involved in your ref erence is presented. In that case certain barges were hired by the steamboat company and were destroyed by the ice in the Mississippi River. It was held that the steamboat company was not liable to the owner of the barges for the value of the same. I am unable to find any statute authorizing the payment of claims of this character. Section 3483, Revised Statutes, relates only to losses of property "in the military service," and moreover the same has been in effect, though not in terms, repealed by the provisions of the act of January 9, 1883 (22 Stat., 401), and subsequent legislation amendatory thereof. (See 14 Opin. A. G., 535.) I must therefore advise you that payment can not be made for the boat lost by Lieutenant Potter in making the preliminary examination of the Colorado River. Respectfully, yours, The SECRETARY OF WAR. EDW. A. BOWERS, Assistant Comptroller. |