been actually and necessarily performed, such officer has performed his duty by rendering his account in proper form to the court with proper affidavit or oath, and was not further concerned with the method of verification adopted by the Government for its own convenience, and was not liable for the expense of entering the orders of approval of such accounts.” He then continued: "As the regulations of the Department of Justice require deputy marshals to certify on oath that the accounts rendered to the marshal are correct, we think this case is controlled by those above cited, and that the court committed no error in allowing the item." The item allowed in United States v. Allred was: "For administering oaths to deputy marshals to verify their accounts of service, as required by the Attorney-General and accounting officers of the Treasury." From the decisions in the two cases of United States v. Van Duzee and United States v. Allred, supra, it seems entirely clear that where an account of an officer is required by law to be proved in a certain manner, the expense of proving the account is to be paid by the officer, but where something is required by the Department of Justice or the accounting officers in addition to that required by law, the expense of complying with such additional requirement is to be borne by the Government. As the act of February 22, 1875, requires accounts to be verified under oath, under these decisions it is entirely clear that the expense of administering the oath is not a charge against the Government, but must be borne by the officer. The action of the Auditor is therefore affirmed. R. B. BOWLER, WITH THE UNITED PAYMENTS TO A CONTRACTOR IN DEFAULT UPON A contractor who is in default under a contract with the United States should not be paid by a disbursing officer the balance due to him on other contracts until his liability for the default has been ascertained and adjusted. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, March 2, 1896. SIR: In your letter of the 15th ultimo you submit for my decision a question growing out of the adjustment of claims under three separate contracts entered into by T. J. Prosser with the United States. You say: "The contractor failed on all three contracts, and the United States assumed charge of same and completed the two firstmentioned contracts, and is now completing the third one. The cost of construction of this sewer contract from beginning of work by contractor (including all payments made to him and cost of work done under direction of the United States) to completion was less than the contract price, as determined by the agreed price for the several items of work, and there is now due contractor the sum of $127. The cost of completion of the second contract was also less than the contract price, and there is due contractor on this contract $726.51; but the amount expended by the United States on the third contract is already larger than the contract price which will become due contractor upon completion, and the work under this contract is not yet completed. "As I will soon have to make final settlement with this contractor, I respectfully request your decision if the amounts due this contractor on the two first mentioned contracts, on which S. W. Fordyce and C. H. Granger are bondsmen, should be withheld and applied to lessen the sum due the United States under third contract (for which the National Surety Company of Kansas City, Mo., is surety), or if these three contracts should be settled up separately and a final payment made to contractor on the two on which a balance to his credit is shown, and the whole amount due the United States on the third contract in due time recovered from T. J. Prosser and his surety on this contract." The matters relating to the third contract are not at present in a condition for a final determination, and a settlement can not be made until all the contracts are completed. It is not clear whether the sums stated to be que the contractor on the first two contracts represent only the unpaid balances due for labor actually performed before the default, or whether they include the difference between the actual cost of the whole work on said contracts and the contract price for the same. The difference between the actual cost to the Government and the price originally agreed to be paid for the work on the first two contracts represents a saving accruing to the United States from the extra care and supervision imposed upon it by the default of the contractor, and I know of no rule of law under which the contractor can rightfully claim to be paid this difference. If there be unpaid balances due the contractor for work actually performed before his default on the first two con tracts, it is clearly the right and duty of the disbursing officer to retain them pending a final settlement of all the contracts. You will, accordingly, make no payments of the amounts referred to by you until the liability of the contractor and his sureties upon the third contract has been determined, and the final settlement can be made. Respectfully, yours, EDW. A. BOWERS, Assistant Comptroller. CHAS. B. THOMPSON, U. S. Army, Assistant Quartermaster, Little Rock, Ark. MILEAGE OF NAVAL OFFICER ORDERED TO TRAVEL BY A CERTAIN ROUTE. An officer of the Navy is entitled to mileage when traveling in the United States by the route which he is required to travel in compliance with his orders. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, March 2, 1896. SIR: I have received your communication of the 28th ultimo, requesting my decision on the question of mileage to be paid Lieut. A. E. Culver, U. S. N., for travel performed under the following order: "NAVY DEPARTMENT, "Washington, February 6, 1896. "SIR: The Department's order of the 30th ultimo is so far modified, that upon being detached from duty on board the U. S. S. Baltimore, you will report to the commandant of the navy-yard, Mare Island, Cal., for duty in connection with the transfer of a draft of men from the Baltimore to the U. S. R. S. Franklin, navy-yard, Norfolk, Va. "You will then proceed, in charge of said draft, via the Southern Pacific Railroad, to New Orleans, La., and thence by the Southern Railroad to the navy yard, Norfolk, Va., and upon your arrival report to the commandant and deliver the draft as he may direct. "Upon the completion of this duty proceed to your home, and leave of absence is granted you for three months. "This employment on shore duty is required by the public interests. "Very respectfully, “H. A. HERBERT, "Secretary. "Lieut. A. E. CULVER, U. S. Navy, "U. S. S. Baltimore, Navy Yard, Mare Island, Cal." You request my decision upon three points, as follows: "1. Whether mileage shall be paid over the roads designated in the orders. "2. Whether mileage shall be paid from Mare Island to New Orleans and thence to Norfolk by the shortest usually traveled route' regardless of the roads named in the order. "3. Whether mileage shall be paid from Mare Island to Norfolk direct by the shortest usually traveled route,' regardless of the intermediate point, and of the roads named in the orders." In this case the officer was directed to proceed from Mare Island, Cal., to Norfolk, Va., by a route specifically designated in the order. No option was left to the officer in choice of routes; he must travel by the route indicated in the order, and he is undoubtedly entitled to the mileage, computed over the route necessarily traveled, so long as the travel was within the United States. The principle governing mileage has been correctly stated by the Court of Claims in the case of Hutchins v. United States (27 C. Cls. R., 137), as follows: "And the principle which governs the computation of mileage is that where the officer is left free to exercise his discretion he must select an ordinary route, but where a route is prescribed for him by superior authority, he is entitled to mileage for the distance actually traveled." The only qualification applying to this principle is that the travel must be within the United States, actual and reasonable expenses only being allowed naval officers "traveling abroad under orders." You are accordingly authorized to pay Lieutenant Culver for mileage over the roads designated in his orders, which travel he must have actually performed. Respectfully, yours, Edw. A. BoWERS, Pay Director F. C. COSBY, United States Nary, Washington. Assistant Comptroller. FORM OF OATH FOR CONSTABLES IN THE INDIAN TERRITORY. A constable in the Indian Territory who took an oath to support the Constitution of the United States and to faithfully perform the duties of the office as required by section 5 of the act of March 1, 1895, is entitled to compensation, although it may be doubted whether Congress intended to require the taking of a different oath from that preseribed in section 1757, Revised Statutes, for officers generally. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, March 6, 1896. SIR: I am in receipt of your letter of the 5th instant, stating that certain constables in the Indian Territory had taken an oath of office in the following form: "I, do solemnly swear that I will support the Constitution of the United States of America and that I will faithfully discharge the duties of the office of constable upon which I am about to enter. So help me God." You ask whether you are authorized to pay them their salaries. A constable in the Indian Territory is appointed by the judge of the court (section 5, act March 1, 1895, 28 Stat., 696) and as such is an officer of the United States and required by section 1757, Revised Statutes, to take the oath therein prescribed (1 Comp. Dec., 4), unless a special or particular oath has been prescribed by law for such an officer (act May 13, 1884, 23 Stat., 22). Section 5 of the act of March 1, 1895, providing for the appointment of constables in the Indian Territory, provides that such constables "shall take an oath to support the Constitution of the United States and to faithfully perform the duties required of" them. The oath taken by the constables as above quoted complies with that provision. It may be doubted, however, whether the provision in the act of March 1, 1895, was intended to supplant the oath prescribed in section 1757, Revised Statutes. However this may be, under the circumstances the provisions of law requiring an oath of a constable before entering upon his duties seem to have been substantially complied with, and I am not prepared to say that the constables who took the oath above quoted are merely de facto officers, and therefore not entitled to the compensation provided for them by law. You therefore are authorized to 11268-VOL 2-28 |