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The expense incurred in removing from a condemned ship previous to its

sale at auction the machinery or other property to be preserved for future use, not being an expense attending the preparation for or holding of the sale, can not be paid from the proceeds.


January 8, 1896. SIR: I am in receipt of your communication of December 4, 1895, stating that,

“The U. S. S. Pensacola and Swatara having been con. demned by a board of survey as unfit for further use in the naval service, and such action having been approved by the board of construction, this Department proposes to sell said vessels at public auction under the provisions of sections 1540, 1541, and other enactments on the subject. It is, however, deemed advisable to reserve from sale certain parts of the machinery and fittings of the vessels named, such as the shafting, the cylindrical boilers, brass tubes of rectangular boilers, and such additional parts as may be fit for service in other vessels.

“Article 1435 of the Navy Regulations, provides that all expenses attending the preparation for and holding of sales shall be paid from the proceeds thereof. The expenses of dismantling the U. S. S. Pensacola and Swatara and separat. ing out the parts of these vessels to be reserved from sale would seem to be properly expenses attending the preparation for the sale of these vessels. The work is necessary in order to prepare the vessels for saie, and is not necessary for any other purpose."

You request my opinion as to whether such expenditure can be defrayed from the proceeds of the sale of the vessels in question, and advise me that the estimated cost of saving this machinery and fittings is $3,030,

By section 2 of the act of August 5, 1882 (22 Stat., 296), it is provided

“And no old material of the Navy shall hereafter be sold or exchanged by the Secretary of the Navy, or by any officer of the Navy, which can be profitably used by reworking or otherwise in the construction or repair of vessels, their machinery, armor, armament, or equipment; but the same shall be stored and preserved for future use."

In the appropriations for the current fiscal year, under the head of “Bureau of Construction and Repair,” is found this appropriation:

“Construction and repair of vessels: For preservation and completion of vessels on the stocks and in ordinary; purchase of materials and stores of all kinds; * * * labor in navyyards and on foreign stations; * * * general care, increase, and protection of the Navy in the line of construction and repair; incidental expenses, such as advertising, * * * nine hundred thousand dollars.”

A critical examination of your letter of December 4 discloses the fact that the expense to be incurred arises from your desire to reserve certain parts of the machinery and fittings which may be useful for service in other vessels. This is clearly authorized, if not required, by the act of 1882 above quoted. In my opinion this expenditure is not an incident to the sale of the Pensacola and Swatara, and consequently can not be regarded under any view of the law as payable out of the proceeds of that sale. It seems to me that the terms of the appropriation act for expenses for the present fiscal year, including as it does expenses for labor in the navy-yards in connection with construction and repair of vessels, and the very broad expression “ general care, increase, and protection of the Navy in the line of construction and repair," are a specific appropriation to meet such expenses as the preservation of the machinery and fittings from vessels to be sold, for use in the construction and repair of other vessels, before making the sale.

It appearing from your statement that it is advisable to reserve the machinery and these fittings from the vessels in question, I have to advise you that the cost of so doing is chargeable to the appropriation “Construction and repair," and that these expenses can not be taken out of the proceeds of the sale of the vessels. Respectfully, yours, EDW. A. BOWERS,

Assistant Comptroller. The SECRETARY OF THE NAVY.



In the absence of any statute limiting the allowance of expenses of secret

agents of the Post-Office Department they may be allowed such an amount as the Postmaster-General approves, and the exercise of his judgment and discretion as to the amount is conclusive upon the accounting officers.


January 9, 1896. The Postmaster-General appeals from the settlement by the Auditor for the Post-Office Department of the account of the postmaster at Washington, D. O., for the quarter ending September 30, 1895. During that quarter, on the order of the Postinaster-General, the postmaster paid to C. I. Croft, a secret agent in the free delivery service of the Department, $128.03, being the amount of his actual expenses for the month of August, as appeared from his itemized expense account examined and approved by the First Assistant Postmaster-General. Upon the settlement of the account the Auditor disallowed $1,53, that amount being the excess of expenses over a maximum of $4 per day for the month of August. In explaining the reasons for this action, the Auditor makes the following statement:

“Secret agents of the free-delivery service of the Post-Office Department are not provided for by any existing statutes, but are appointed by the Post-Office Department under the general authority conveyed by the act of appropriation setting apart a stated sum for the support of that service. Consequently, there is no enactment of law limiting the amount of their expenses. The propriety of placing some limit upon these expenses having become apparent to this office, and having some hesitation in authorizing the payment of accounts involving expenditures greater in amount than those allowable for the same purpose to officials of the Post-Office Department and in other Departments, engaged upon duties analogous in character with those of secret agents, I have decided to con. fine personal expenses to $1 per day, and have disallowed items in excess of that sum."

As stated by the Auditor, there is no statute limiting the amount of the expenses of secret agents in the service of the Post-Office Department, nor has the Postmaster-General established any regulation in regard to the matter. Such accounts are examined in the office of the First Assistant PostmasterGeneral, and approved for an amount varying with the circumstances of each case and without regard to any maximum per diem rate.

The appropriation from which these expenses are payable reads: "For free-delivery service, including existing experi. mental free-delivery offices.” In the absence of any law or regulation fixing tbe amount which may be allowed for the expenses of a secret agent, the matter is one entirely within the discretion of the Postmaster-General in the management of the postal service, and his decision as to the amount of expenses, when that discretion is properly exercised, is conclusive upon the accounting officers of the Treasury.

In the case of United States v. Waters (133 U.S., 208), Mr. Justice Lamar, in delivering the opinion of the court, cited, with approval, the following lauguage of the Court of Claims with reference to the powers and duties of the accounting officers:

“Those powers and duties are well understood. * * * The Comptroller decides whether or not the items are author: ized by statute and are legally chargeable. He has no power to review, revise, and alter items expressly allowed by statute, nor items of expenditures or allowances made upon the judgment and discretion of other officers charged with the duty of expending the money or of making the allowances. His duty extends no further than to see that the officers charged with that duty have authorized the expenditures or have made the allowances."

This statement of the power of the Comptroller applies as well to the Auditor for the Post-Office Department, and he has no power to disallow an item when the question involved in the expenditure is one committed to the judgment and discretion of tho Postmaster-General. The account will be revised accordingly.


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An appropriation for the construction of a light-house, “under a contract

which is hereby authorized,” will permit the making of two contracts for different parts of the work in the usual manner, provided they are simultaneously made and the total liability on account of the lighthouse does not exceed the sum fixed.


January 10, 1896. SIR: I am in receipt of your letter of the 3d instant calling my attention to the appropriation in the sundry civil appro. priation act of March 2, 1895 (28 Stat., 916):

“For reestablishing the light-house at Smith's Point, Ches. apeake Bay, Maryland, recently carried away by the ice, twenty-five thousand dollars, to be immediately available, and the total cost of reestablishing such light-house under a contract which is hereby authorized therefor, shall not exceed eighty thousand dollars.”

You state that it has been the usual practice of the LightHouse Establishment in building light-houses to divide the work required into two parts, and embody in one part the construction and delivery of the metal work, and in another the erection and completion of the structure at the site, and you ask whether, under the above-quoted clause from the act of March 2, 1895, two contracts may be made in accordance with the usual custom.

The manifest purpose of the clause in regard to the making of the contract was to authorize the incurring of obligations for the complete erection of the light-house at Smith's Point, provided the entire cost did not exceed $80,000. Therefore, two contracts in accordance with the usual custom of the Light-House Establishment may be made and payments made thereunder, provided said contracts are made simultaneously and the aggregate obligation incurred by said contract does not exceed $80,000 for the complete structure, including any expenses already incurred. See post, p. 395.] Respectfully, yours,



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