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orable discharges” as provided by the Navy Regulations, 1893 (articles 798 and 813), yet such discharges can not carry the right to pay and other benefits, except when issued in conformity with the section of the Revised Statutes that author izes such extra pay.
Second Comptroller Brodhead, in a letter of January 28, 1864 (Second Comp. Dec., vol. 25, p. 700), after quoting the law contained in section 1573, Revised Statutes, says upon this subject:
“It is manifest from the language that only four classes oi persons can legally receive the bounty for reenlistment, viz, seamen, ordinary seamen, landsmen, and boys. A wardroom steward is not in the category of beneficiaries under the act, and if he has any claim for reenlisting it must be as belong. ing to one of the four classes mentioned. I understand that Ramsey originally enlisted as a landsman; he could not reenlist as wardroom steward, or if he could, he would have no right under the law to any bounty for reenlistment."
Subsequently to this decision two other classes of enlisted men were specifically added in sections 1426 and 1573, Revised Statutes, to wit, firemen and coal heavers, thus showing the intention of Congress to limit the benefits of reenlistment pay to those classes specifically named.
It is not perceived how Yeoman Brayton can properly be considered as coming within any of the classes mentioned as entitled to the benefits of the three months' extra pay, and the character of his discharge does not alter his status in this respect so as to bring him within any of the designated classes. The fact that he has received an honorable discharge, pursuant to Navy regulation, does not give him the status of one receiving an honorable discharge authorized by section 1426, Revised Statutes, or the status of one in some one of the classes specified in said section 1573 as entitled to extra pay for reenlisting. • Respectfully, yours, EDW. A. BOWERS, .
Assistant Comptroller. Pay Inspector GEORGE A. LYON,
United States Flagship New York,
CONTRACT FOR THE CONSTRUCTION OF JETTIES
IN GALVESTON HARBOR.
Consideration of the contract of O'Connor, Laing & Smoot for the con
struction of jetties in the harbor at Galveston, Tex., with reference to their liability thereunder to maintain the railway used in connection with the work.
May 22, 1896. SIR: I am in receipt of your letter of the 2d instant, inclosing certain papers in the inatter of the claim of Messrs. O'Connor, Laing & Smoot for labor and materials furnished in the construction of jetties in Galveston Harbor, Texas.
From an examination of the papers, it appears that O'Connor, Laing & Smoot entered into a contract with the United States May 12, 1891, to build the jetties in Galveston Harbor. The proposals to bidders, which are attached to and form a part of the contract, contained among the specifications the following:
" 2. General method of construction.-A railway of standard gauge will first be constructed upon trestlework, following the line of the jetty. The material will then be deposited about and between the piles." * * *
65. Railway.-The railway is to be of standard gauge, its axis to coincide in plan with the axis of the jetty. * * * They (the rails) are to be carried upon trestlework constructed as follows: Bents of piling will be driven fifteen feet from center to center, each bent capped with a piece of 12-inch by 12. inch timber ten (10) feet long. * * * Upon the caps will be placed two twelve-inch by fourteen-inch stringers, upon which the rails will be laid. * * * Additional strength will be given to the trestle when required, the additional amount paid therefor to be the actual additional cost to the contractor."
Further details in regard to the construction of the railway, not material to the matter now under consideration, were specified.
“9. Use of railway.—During the period of the contraci, the contractor will be allowed the use of the railway now existing upon the completed portion of the south jetty, and of that built under this contract, for the purpose of transporting the material to be delivered by him, and he will be required to keep the track and trestle in good repair; but should extraordinary damage occur from storms, the repairs will be the subject of special adjudication; and the decision of the engineer officer in charge as to what constitutes extraordinary
damage, and what portion thereof should be borne by the con. tractor, shall be final. All temporary side track and switches must be provided by the contractor at his own expense."
“14. Extent of the works.—Tlie exact distance out in the Gulf to which it will be necessary to carry the jetties can not be determined in advance, but it will not fall short of the outer crest of the bar, nor will it extend beyond the contour of the thirty-foot depth outside of the bar. The United States reserves the right to suspend operations upon either or both of the jetties at any point between these two limits, and the works shall then, for the purpose of releasing the percentage referred to in specification 21, be considered complete, and further operations shall then consist in maintaining the works in good condition and in extending them further into the Gulf, should the engineer officer in charge think proper to make such extension at any time within five years after this suspension of work." * * *
“18. Maintenance. The works will not be considered completed until they shall have been maintained a period of five years after their construction. Whenever repairs become necessary the engineer officer in charge shall notify the contractor of the character and approximate quantity of the materials required, and the contractor shall, within thirty days from the date of such notification, begin the delivery of the materials, and shall push the work of repair with diligence. The prices paid for materials used in maintenance will be the same as those for the original work, and the terms of payment will be the same, except that there shall be no retained percentage."
“ 19. Extension of jetties.-Should it be necessary, in the opinion of the engineer officer in charge, at any time within the five years after the original construction of the jetties, to extend them further into the Gulf, the contractor shall begin such extension within sixty days from the date of notification, and all of the terms and conditions which governed the origi. nal work shall apply to such extension; but the contractor will not be required to maintain such extensions for a period beyond the termination of the five years during which he is required to maintain the original works."
In May, 1893, the work upon the south jetty having been completed to a point beyond the outer crest of the bar, but not beyond the contour of the 30-foot depth in the Gulf of Mexico, the work was suspended by order of the engineer in charge in accordance with the provisions of paragraph 14 of the specifications. In December, 1894, it having been deemed necessary by the engineer in charge of the work that the south jetty should be extended farther into the Gulf, he notified the contractors to make arrangements to repair the
railway in order that they might shortly thereafter proceed with said work of extension, and submitted to them a plan for the repair of so much of the railway upon the south jetty as lay between stations 80 and 194, by which, instead of requiring new piles to be driven in cases where the piles had become so defective that they could not of themselves sustain the caps and stringers placed thereon according to the original plan, he required the caps to be strengthened and further sustained by blocks placed thereunder on the outside of the piles, said blocks resting upon the stonework of the jetty. From station 194 to station 320, in lieu of repairing or reconstructing the railway upon the jetty, an entirely new trestle and railway were laid alongside of and substantially parallel to the jetty, varying from 30 to 50 feet therefrom. The question immediately arose whether the cost of repairing and maintaining the railway should be borne by the contractors or the United States, and it was decided, on January 25, by the Chief of Engineers that the cost of repairing and restoring the railway upon the jetty between stations 80 and 194 and of the building of the new trestle and railway between stations 194 and 320 should be borne by the United States, which was accordingly done and the contractors were paid for the same.
This still left the question of the repairs to the railway during the progress of the work of extending the jetties still open. In reply to the letter of the engineer in charge of the work, the Chief of Engineers informed him, February 5, 1895, “after the trestle and track have been repaired and turned over to the contractors for making the necessary extension of the jetty, the expense of the ordinary repairs that will from time to time be made necessary for wear and tear should be borne by the contractors, as provided for in specification 9 of their contract.”
Both of these decisions of the Chief of Engineers were duly communicated to the contractors, notwithstanding which fact they have persistently claimed that they are entitled to be paid the cost of repairing the track during the progress of the work of extension, and make claim for payment of the amount expended by them upon said repairs.
The question presented by your communication is whether you are authorized to make payment for such repairs as have been already made and of those which may be required in the future.
It is clear from a reading of paragraph 14 of the contract that it provides for three distinct things during three different and distinct periods: First, the work of original construction to a point between the outer crest of the bar and the 30-foot depth outside of the bar; second, the maintenance of these works for a period of five years after the work of original construction was suspended; third, the extension of the jetties farther into the Gulf should that be deemed necessary.
By paragraph 9 the contractor was allowed the use of the railway upon the jetty “for the purpose of transporting the material to be delivered by him, and he will be required to keep the track and trestle in good repair,” except that the repairs required by extraordinary damage from storms might be the subject of special adjudication, the portion thereof to be borne by the contractor to be determined by the engineer officer in charge, whose decision should be final.
By paragraph 18, after completion of the original work and during the period of maintenance thereof, the cost of such maintenance and repairs was to be borne by the United States. By paragraph 19 it was provided that if, after suspension of the work, it was deemed necessary to extend the jetties sarther into the Gulf “ all of the terms and conditions which governed the original work shall apply to such extension."
It is claimed by the contractors that the railway was part of the work, and that after suspension of the original work of construction the expense of maintaining it was to be borne by the United States, not only during the period when only the original work was being maintained, but also during the period of the extension of the jetties into the Gulf.
From a reading of the entire contract, there is much to indicate that the contention of the contractors, so far as the period of maintaining the original work is concerned, is correct, and that the railway did become a part of the work to be maintained by the United States. Without deciding this question, it is clear that, as they have been paid for the work of restoring the railway so as to put it into serviceable condition for the purpose of extending the jetties, they have now no claim against the Government for the cost of maintaining said railway, unless, by the terms of the contract, the Government was required to maintain the railway not only during the period of maintenance of the original work, but also during the period of the extension of the jetties.