These questions may review of the whole settlement by him. First. As to whether the proviso in the act of August 18, 1894 (28 Stat., 411), making appropriations for sundry civil expenses for the year ending June 30, 1895, requires the disallowance of the payments made by the general treasurer of the National Home for the inspection of goods purchased for the Home before delivery. This proviso is as follows: "That all amounts disbursed from the appropriation of a Branch Home shall be disbursed and accounted for monthly to the general treasurer by the treasurer of that Branch, except such expenditures for services, stationery, tableware, clothing, and bedding, as may be required by the Board of Managers to be legally made by the general treasurer, and all such stationery, tableware, clothing, and bedding as may be required for each Branch Home shall be shipped directly from the place of purchase or manufacture to such Branch Home; and all disbursements shall be made in conformity with sections thirty-six hundred and seventy-eight and thirty-six hundred and seventy-nine, Revised Statutes." Under this proviso it appears that the practice of the Board of Managers of the National Home has been to make contracts with the manufacturers of such completed goods as tableware to be delivered to the Home f. o. b. on the cars at the factory, and before accepting the goods it is necessary, as they allege, to determine whether or not the goods supplied are of the grade contracted for and equal to the samples deposited at the central office of the National Home. To enable the Board to determine this question, experts have been employed to make this inspection, accepting or rejecting such of the goods as were offered as seemed in their judgment to be proper. This special service has been performed by persons not otherwise in the employ of the Home, and has been paid for out of the moneys appropriated for the purchase of the kind of goods inspected, as an incident to their purchase. The Auditor's objection is based upon the supposition that this is an employment payable out of the incidental appropriations for the Home, or is to be paid under the head of "Salaries for officers, etc." His objection is clearly correct, if these payments were so made; but if, as appears to be the fact, these expenditures were regarded as an item in the cost of the purchase of the goods in question, it seems to me that it is a proper charge against the appropriation for the purchase of the goods inspected, in the absence of a specific appropriation for such inspections. As well might it be said that the freight charges for transporting the goods from the factory where they were delivered and accepted, were not properly chargeable to the appropriation for the purchase of these goods, in the absence of a specific appropriation for such freight charges. It would be manifestly improper for the managers of the Home to accept any goods that might be furnished by the contractor without a critical inspection to determine whether they came up to the contract requirements or not. That such expenditures as these have been treated as incidental to appropriations, many settlements made by the accounting officers in the past bear witness, and the proposition is so self-evident that it seems to require no citation of authorities. Second. As an incident to this inspection of goods purchased under contract, the question of apportionment of the expenditures involved in such inspections arises. It appears that the practice of the Home has not been to apportion these expenses in strict accordance with the amount of each kind of property forwarded to each of the Branch Homes from the factory. The general treasurer states: "The ratio of distribution among all the Branches as shown by this voucher is arrived at on the basis of the contract; each Branch was to obtain tableware in proportion as its appropriation bore to the aggregate appropriations for all of the Branches under the head of 'Subsistence."" The Auditor for the War Department objects to such apportionment on the ground "It is required that such disbursements conform to section 3678, Revised Statutes, and that the articles purchased be shipped directly from the place of purchase or manufacture to the Branch. Now, an arbitrary apportionment of the total cost can not be made under this act. Each Branch must be charged with the articles shipped to and used by it; and such shipment must be direct from the place of manufacture or purchase." Section 3678, Revised Statutes, provides: "All sums appropriated for the various branches of expendi ture in the public service shall be applied solely to the objects for which they are respectively made, and for no others." While it can not be claimed that under the system pursued in apportioning these expenses there is an absolute mathematical compliance with the provisions of section 3678, Revised Statutes, yet the difference must be so slight as to be unworthy of attention. De minimis non curat lex. The amount of the appropriation for one Branch Home applied, under this system of apportionment, for the benefit of another Branch Home, upon all shipments made of all classes of goods, would ultimately amount to a trivial sum, and may well be ignored in the practical administration of the affairs of so great an institution as the National Home. The practice hereafter, however, should be to apportion these inspection expenses in accordance with the amount of property of each kind inspected for and shipped to each Branch Home at the time of shipment, as an incident to the cost of the goods. Third. Still another question arises under the provisions of the act of August 18, 1894. This is as to the propriety and authority of the managers to purchase so-called raw materials for manufacture into completed products at the Central Branch, at Dayton, Ohio. The practice has been to buy large quantities of cloth for manufacture into clothing for the inmates of the Home, of sheeting for the making of sheets, etc., and of various other materials for the production of articles necessary to be supplied to the Branch Homes. Objection has been made that this could not properly be done, as the above proviso requires that all stationery, tableware, clothing, and bedding required for each Branch Home be shipped directly from the place of purchase or manufacture to such Branch Home. This provision is clearly mandatory in the case of completed articles, which must be shipped from the place of purchase or manufacture directly to the Branch Home, but in my opinion it is not applicable to pur chases of materials which are shipped to the Central Branch for manufacture. The phraseology of this proviso indicates an intention on the part of Congress to recognize the propriety and economy of a long-existing practice at the Central Branch; and I therefore hold that in shipping to any point, for manufacture, materials purchased and in an incomplete condition for use, the Board of Managers have complied with the provisions of the act of August 18, 1894, in directing such shipments to be made to other points than the Branch Home where the product is to be consumed, but that in the case of a completed product, such as caps or tableware, the shipment must be directly to the Branch where the articles are to be used. It appears, however, from an examination of the settlements submitted to me that in some cases a completed product has been shipped directly to the Central Branch, and from there distributed to the Branch or Branches where it was to be used. This is clearly a violation of the law; but the general treasurer has paid for the goods so purchased, and the question now arises as to the authority of the Auditor to disallow such payments. This question is not free from difficulty. In the voluminous and varied accounts submitted to the Comptroller from time to time, it is necessary to carefully draw the distinction in reference to such payments. See case of Major Reid (ante, p. 264) and case of Tanner (Bowler's First Comp. Dec., 176), with cases there cited. In the matter of the goods and supplies purchased for the National Home it is manifest that the parties supplying these goods under contract would have a valid claim against the Government, enforcible in the Court of Claims in case the disbursing officer declined to pay the same. The fact that these goods are not shipped in accordance with the provisions of law can not affect the rights of the parties contracting to supply the same. They have no means of knowing, nor is it their duty to inquire, whether the goods shipped by them to the Central Branch are intended for use at that point or not. It has been decided that parties contracting with the Government need not ascertain whether the amount still available of the appropriation under which their contract is made is sufficient to meet the obligations of the contract. That knowledge rests peculiarly with the officers of the Government. The contractor having determined that there is an appropriation from which the purchase of goods supplied by him is authorized, need look no further. It certainly could not be contended that the railroad company transporting the goods from the place of purchase to the Central Branch is not entitled to the payment of its freight charges because the goods under the law should have been shipped to some Branch Home where they were to be used. I am therefore of the opinion that under the circumstances of this case the general treasurer must be allowed credit for disbursements made for goods properly contracted for by the officers of the Home and delivered for its use, whether those officers have complied with the requirements of the law as to direct shipment or not. Their dereliction of duty can not affect the justness of the claims of the parties supplying the goods nor the obligation of the general treasurer to pay for the same. The three questions above considered cover a large proportion of the items questioned by the Auditor, and settlements will be made in accordance herewith. The Auditor has made a number of disallowances, of which item No. 1, December, 1894, headed "Pay roll," is an example, for the following reason: "These vouchers are disallowed for the reason that the expenditures properly pertain to the fiscal year 1895, and as such are in conflict with the provision inserted in the appropriation act of that year appropriating the use of money appropriated for construction and repairs in the erection of new buildings. The expenditures for new buildings being illegal, all advertisements for proposals to erect the same are unauthorized, and payments on account of such advertisements from first head are also disallowed." The explanation, as furnished by the treasurer of the Central Branch, of this voucher is as follows: "The construction of this building from the appropriation of 1894 was authorized by the president of the Board of Managers in letter to governor of Central Branch dated 'Hartford, Conn., June 20, 1894.' The ground was accordingly staked off and excavation commenced in June, and the building was advertised for on June 28, 1894. When bids were opened under this advertisement, all were rejected as being too high, and a new advertisement was published on 24th of July, 1894 (copy inclosed herewith), and contract was awarded 7th of August, 1894. (See printed minutes proceedings of Board of Managers, vol. 2, p. 536.)" From the above explanation it appears that this work was not actually entered into until the fiscal year 1895, and the objection upon which the Auditor has disallowed the vouchers is well taken; but the proper course to be pursued is to allow these items out of the appropriation for the fiscal year 1895, if there is a balance of this appropriation available for this purpose. (Ante, p. 51.) EDW. A. BOWERS, [Supplemental decision, May 28, 1896.] SIR: Replying to your letter of May 25, 1896, in which you say: "Referring to your decision rendered May 11, 1896, in re accounts of the National Home for Disabled Volunteer Soldiers, I have the honor to inquire if the last paragraph thereof is intended to apply to all of the following vouchers, viz. "It has been contended by the Managers of the National Home that the appropriation for 'construction and repairs' was available until exhausted, as are other appropriations for the construction of public buildings. These vouchers were paid in part from that appropriation and in part from the appropriation for 'Current expenses."""" |