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Rule 13 provides:
“ The service of all subponas shall be by a delivery of a copy thereof, by the officer serving the same to the defendant per: sonally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person wbo is a member or resident of the family."
It is clear that where a restraining order requires that the marshal is to serve the defendants with a certified copy of the order, the fee for a certificate to such copy is allowable under the principle of the decision in United States v. Van Duzee (140 U.S., 169), that a clerk is to be allowed the fees prescribed by law for all services which he is required to perform by order of the court. Mr. Finnell will therefore be allowed fees for certificates to copies of the restraining orders, but not for seals, because seals are not required by the order of the court. As rule 13 of the equity rules does not require that the copies of the subpæna shall be certified, and as it does not appear that there is a rule of court requiring such copies to be certitied, nor that the practice to which Mr. Finnell refers has been prescribed by the court or adopted by it, fees for certificates and seals to copies of subperas were properly disallowed by the Auditor.
R. B. BOWLER,
IN RE APPEAL OF HENRY W. SWIFT, UNITED STATES MARSHAL FOR THE DISTRICT OF MASSACHUSETTS.
Under the act of March 3, 1875, a prisoner entitled on his discharge to
“ one plain suit of clothes" may be given a plain outfit, including such articles of ordinary clothing, within the Department limit of $15, as may be necessary to properly clothe and protect such prisoner.
January 10, 1896. Mr. Henry W. Swift, United States marshal for the district of Massachusetts, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending June 30, 1895, under the appropriation “Sup. port of prisoners, United States courts, 1895.” The Auditor disallowed the following items:
“ Voucher 2. The following amounts paid for overcoats, shoes, and other articles, other than one plain suit of clothes, and furnished to the prisoners named upon their discharge from prison, disallowed. (See the act of March 3, 1875.) The law provides that such discharged prisoners shall have pro. vided “one plain suit of clothes and five dollars in money.' * * * Voucher No. 6, underclothing, shirt, shoes, hat, col. lars, and necktie, $23."
Section 2 of the act of March 3, 1875 (18 Stat., 480), above referred to, is as follows:
“That on the discharge from any prison of any person convicted under the laws of the United States on indictment, he or she shall be provided by the warden or keeper of said prison with one plain suit of clothes and five dollars in money, for which charge shall be made and allowed in the accounts of said prison against the United States: Provided, That this sec tion shall not apply to persons sentenced for a term of imprisonment of less than six months."
By a regulation of the Department of Justice it is provided that the plain suit of clothes authorized by this section shall not exceed $15 in cost. This limit was not exceeded by the marshal in the present instance, but in some cases he supplied the prisoner with such clothing as he needed, including a coat, waistcoat, trousers, overcoat, shoes, hat, underclothing, collars, etc., and claims that “one plain suit of clothes” includes any article of clothing that may be needed to send the prisoner out into the world properly clad and protected from the weather. The Auditor has allowed only for the purchase of a suit of clothes, including a coat, waistcoat, and trousers.
The intention of Congress in making the above provision in the act of March 3, 1875, was, in my opinion, to provide a prisoner on his discharge with suitable clothing without unreasonable expense to the United States, and the total cost has been limited by regulation to $15. That “one plain suit of clothes” can not be limited to the articles enumerated by the Auditor is quite evident from a reading of the above section, for it applies to female as well as male prisoners.
The Attorney-General, who is charged with the supervision of United States prisoners, states that the act has been construed by him to include such articles of clothing as were needed for the prisoner's comfort and to enable him to make a decent appearance.
In view of the evident intention of Congress in the act of March 3, 1875, and the construction placed upon it by the Attorney-General, I am clearly of the opinion that “one plain
suit of clothes” should be held to include bone plain outfit," consisting of such articles of clothing within the Department limit of $15 as the Attorney-General may deem necessary and proper.
The amount disallowed by the Auditor on these items will therefore be allowed.
R. B. BOWLER,
COMPLETION OF CONTRACT BY SURETIES OF
The sureties on the bond of a defaulting contractor can not be recognized,
under his contract, to complete the work, although after the Government has canceled the contract on account of the default they may make a new contract on their own behalf, without affecting their liability as sureties on the canceled contract.
: January 11, 1896. SIR: By your indorsement of the 31st ultimo, I have received a communication from Capt. George McDerby, Corps of Engi. neers, in relation to the failure of James Harvey Gunning to comply with the terms of his contract, dated November 10, 1894, for furnishing rock for the improvement of the barbors of Natchez and Vidalia.
From the papers submitted the facts appear to be as follows: Under date of November 10, 1894, James Harvey Gunning entered into a contract with the United States to furnish 12,000 tons of rock on or before July 1, 1895. At the request of the contractor, the time for the completion of the work bas been extended to January 1, 1896. On December 26, 1895, the contractor had furnished only 1,655 tons, and at that time acknowledged in writing his inability to complete his contract, and requested the engineer officer in charge to arrange with the sureties on his (Gunning's) bond for the completion of the work, and to make payments to said sureties.
On this statement of facts you request my “decision whether the contract can be completed by the bondsmen in their owni behalf, or whether, after annulling the contract, the balance of the stone may be purchased from the bondsmen as an openmarket transaction, at the contract price and subject to the specifications."
The time fixed for the completion of the work required by the contract having expired, and no extension beyond January 1, 1896, having been granted, the contractor is undoubt. edly in default, and I do not see how the bondsmen can be allowed to complete the contract in behalf of their principal. As the contractor is in default, it is undoubtedly competent for your Department to annul the contract “by giving notice in writing to that effect to the party of the second part,” and thereupon to proceed to provide for the completion of the work by purchase in open market, if the public exigency requires it. In making the open-market purchase it will be a new contract, and the bondsmen are not excluded from competing with others for furnishing the rock; and I see no reason why the contract should not be awarded to them, provided they will furnish the rock in accordance with the specifications of the original contract, and at as low a price as anyone else. Their liability as sureties will not, of course, be in any way affected by this step. Respectfully, yours, EDW. A. BOWERS,
Assistant Comptroller. The CHIEF OF ENGINEERS,
United States Army.
BURIAL EXPENSES OF DECEASED EMPLOYEE.
Except in cases specifically authorized by law it is no part of the duty of
the Government to pay the burial expenses of a deceased employee; but where such burial is necessary for the health and safety of other employees, the expense may be properly paid as an incident to the service in which they are engaged. .
January 11, 1896. SIR: I am in receipt of your letter of December 27, 1895, stating that one Oscar Le Besque, a member of the crew of the tender Pansy, on duty in the Eighth light-house district, died at Velasco, Tex., of malarial fever, after a very short sickness, and that, as there was no marine hospital at that point and no kind of provision made for such contingencies, nor any legal representative present to pay the bills incurred, it was absolutely necessary that the expenses connected with the sickness and burial of Mr. Le Besque should be borne by
the master of the Pansy, which he paid, as shown by his certificate and certain bills inclosed with your communication; said bills are, for professional services $5, for medicine 75 cents, for coffin and burial $12; a total of $17.75.
You ask whether the master of the Pansy may be legally reimbursed for said expenses, and if so, out of what appro. priation.
It is clear that it is ordinarily no part of the duty of the Gov. ernment to see that persons in its employ are properly cared for during their last sickness, or buried upon the termination thereof, and such expenses are therefore not a charge against the Government. It may occur, however, in particular cases, that such expenses must be incurred not on account of the employee but for the preservation of the health and safety of other employees of the Government, in which case such expenditures might be authorized as necessarily incident to the service of the Government in which they are employed.
Upon November 14, 1891, such an allowance was inade by the then Commissioner of Customs in a somewhat similar case arising in the Life-Saving Service, upon which he delivered the following opinion:
Respectfully returned to the General Superintendent of the Life-Saving Service. As indicated in the indorsement of April 22, 1891, claims of this character can be paid from the appropriations for the Life-Saving Service only when the expenses incurred were necessary for the Service. It can readily be perceived that the preservation of the health and comfort of keepers and crews at the stations should sometimes render it necessary to properly dispose of dead bodies of surfmen, or even of persons not in the Service, which might be left uncared for at the stations. But the existence of such an exigency is a question of fact which should be ascertained and certified by the proper officer of the Life-Saving Service.
"The certificates in the cases submitted do not embrace this fact; thus a certificate that the expenses incurred “were necessary for the Christian burial' of the deceased persons is not sufficient."
A similar ruling was made by that officer in the case of James McIntyre, who was accidentally killed on board the tender Putnam, April 4, 1890. The reasons given in that case were as follows:
" Where, in a case of emergency, it is necessary in the interest of the Service to remove and dispose of the body of a deceased person, by interment or otherwise, it would seem that