It is to be noticed that so far as the new railway beyond station 194 is concerned, the contractors had themselves suggested such action on November 17, 1894, for they said:

*

"We would suggest * beyond station 200 drive new trestle on the north side of the south jetty, where the sands have formed a beach, and short piles will afford more stiffness to the structure, besides cheapening the cost of repairs."

And on April 13 they wrote that they would reconstruct the railway in any other manner than that suggested by them, with the approval of the engineer.

In reply to request for information by the Comptroller as to the attitude taken by the contractors at the time the reconstruction of the railway was ordered, the engineer writes on May 12, 1896, as follows:

"The request of the Comptroller contains the following questions:

"First. Did the contractors at any time protest against the manner adopted for the reconstruction of the railway from station 80 to station 194?

"Answer. To the best of my knowledge and belief the contractors did not protest against the manner adopted for the reconstruction of the railway from station 80 to station 194.

"Second. Did they object or protest against the location of the track between stations 195 and 320?

"Answer. The method originally proposed by the engineer in charge was objected to for repairs between stations 195 and 320, and this method was abandoned, and an entire new line of trestle for repair of track was agreed to as proposed by the contractors. No objection was made to this new line or method.” While in recent letters the contractors say:

"As we have always protested and claimed (see our letter of January 15, 1895) that the Government is required under sections 14 and 18 of the contract of May 12, 1891, to maintain the trestle and jetty (the works') after its suspension in May, 1893, we required and demanded nothing more than that the Government should rebuild and maintain a safe track and trestle; it would have been unnecessary and absurd to have raised objections to the adoption of any plan or location for the restoration of the railway and trestle which would furnish a railway for the transportation of materials for extending the jetty, and also in the judgment of the engineer officer in charge prove most economical to the Government in construction and maintenance.

"As we claimed that the Government should not only rebuild and restore the tracks and trestles, but should keep same in repair during the extension of the south jetty, our protest as to the character of work which they proposed to do was based

upon the insecurity of the trestle and railway tracks, and the unfitness of the work for the support of the heavily loaded trains of rock cars which were to pass over same, thereby jeopardizing our locomotives and railway property as well as the lives of our men.

"We could have refused to operate the track until the maintenance of the trestles and railway track in good condition were agreed to be paid by the Government, but such conduct would have brought us into bad repute with the engineer officer in charge, and the work of construction of the jetties would have been seriously delayed thereby.

"We do not understand how the merits of the question could be affected by our attitude at that time, as the duty of rebuilding and maintaining the tracks we claimed was entirely on the Government, and the engineer officer in charge, in all fairness and consistency, should have been permitted to rebuild the track in a manner most economical to the Government, in both construction and repair, provided only we were furnished with a safe railway track and trestle over which to transport our material, and the Government maintained same at their own cost."

From the entire correspondence it seems quite clear that the contractors at no time took serious exceptions to the plans which were finally adopted for the reconstruction of the railway; that the matter was under consideration by both the engineer and the contractors, and that if the contractors were not satisfied with the manner in which the work of restoration was to be done they did not protest against the same, because, as stated by them, upon their construction of the contract the cost of maintaining the railway when restored should be borne by the United States. As already shown, such is not the proper construction of the contract.

Moreover, it clearly appears that the new railway trestle between stations 194 and 320 was built at the suggestion of the contractors because "the short piles will afford more stiffness to the structure besides cheapening the cost of repairs." They can hardly complain if their own plan has increased instead of lessened the cost of repairs. As the contractors knew that the purpose of reconstructing the railway was to comply with specification 9, which provided that the contractors should be allowed the use of the railway for the purpose of transporting the material to be delivered by them, on condition that they should "keep the track and trestle in good repair." If not satisfied with the manner in which the work of restoration was being done by the engineer, they should

have notified him that they would not consider themselves under obligation to keep the railway in repair if the plan proposed was insisted on, and sought a modification of the contract in accordance with the manner therein provided. (See Roettinger v. United States, 26 C. Cls. R., 391.) This they did not do, but did restore the railway according to the plan adopted by the engineer, and have been paid for the same. As their only right to use the railway is found in specification 9, having used the railway as reconstructed they must be deemed to have used it rightfully under the terms of that specification, which required them to keep it in repair. If there was any change in the contract as to the mode in which the railway should be built, they must be considered as having waived it. It would seem from all the circumstances of the case that they are estopped from claiming that the manner adopted by the engineer for the restoration of the railway was such a deviation from the terms of the contract as would throw the burden of maintaining the railway thus restored upon the United States during the progress of the work of extending the jetties.

Furthermore, under the contract it would appear that such changes might have been made by the engineer, for it is provided in paragraph 11 of the specifications that "He [the engineer] will, if he thinks proper, make changes in the form of cross section described in specification 2," while specification 2 provides: "A railway of standard gauge will first be constructed upon trestlework following the line of the jetty," and that railway is more fully described in specification 5, heretofore quoted.

If, however, it was not within the power of the engineer to make such a change in the contract, no additional burden can be thrown upon the United States, for it was specifically provided in the contract as follows:

"If at any time during the prosecution of the work, it be found advantageous or necessary to make any change or modification in the project, and this change or modification should involve such change in the specifications as to character and quantity, whether of labor or material, as would either increase or diminish the cost of the work, then such change or modification must be agreed upon in writing by the contracting parties, the agreement setting forth fully the reasons for such change, and giving clearly the quantities and prices of both material and labor thus substituted for those named in the original contract, and before taking effect must be approved

by the Secretary of War: Provided, that no payments shall be made unless such supplemental or modified agreement was signed and approved before the obligation arising from such modification was incurred.

"No claim whatever shall at any time be made upon the United States by the party or parties of the second part for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or materials shall have been expressly required in writing by the party of the first part or his successor, the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the Chief of Engineers."

No agreement was made, as required by the contract, that the cost of maintaining the railway during the progress of the work of extending the jetties should be borne by the United States because of any change in the manner of restoring the railway; and without such an agreement no obligation to keep the railway in repair can arise. (See Ferris v. United States, 28 C. Cls. R., 332, and cases therein cited.) The opinion of the JudgeAdvocate-General referred to by the contractors has no bearing upon the question now under consideration, as it related exclusively to payments to be made for the cost of the maintenance of the work during suspension of operations, as provided in specification 18.

I am therefore of the opinion that the cost of maintaining in repair the railway during the progress of the work of extending the jetties is, under the contract, to be borne by the contractors and not by the United States and that this obligation is not changed by the facts presented; and, therefore, that you are not authorized to pay to the contractors the cost of such repairs, unless any of the repairs should have been, or shall hereafter be, required because of extraordinary damage occurring from storms, which, by specification 9, is made the subject of special adjudication, the decision of the engineer officer in charge as to what constitutes such extraordinary damage and what portion is to be borne by the contractors being final. [See post p. 599.]

Respectfully, yours,

The SECRETARY OF WAR.

11268-VOL 2- -37

R. B. BOWLER,
Comptroller.

IN RE APPEAL OF E. O. LOCKE, CLERK UNITED STATES CIRCUIT COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA.

When an indigent defendant has made the proof required by section 878, Revised Statutes, the clerk is entitled to a folio fee of 15 cents from the United States for entering the order of the court to summon defendant's witnesses.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

May 23, 1896.

Mr. E. O. Locke, clerk of the United States circuit court for the southern district of Florida, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending December 31, 1895.

Among the disallowances made by the Auditor is the following:

"Charge for entering order to summon defendant's witnesses under Revised Statutes, section 878, disallowed, the United States not liable for any expense prior to issuance of subpoena, twelve folios at 15 cents, $1.80."

This action was no doubt taken because of the decision of the Comptroller in the case of Brooks (ante, p. 224), in which it was held that a charge for filing an indigent defendant's affidavit under section 878, Revised Statutes, was not a proper charge against the Government. In that opinion it was said:

"From a reading of the language above quoted, it is clear that the costs incurred by the process' first arise when, after the person indicted has filed a proper affidavit, the judge orders the witnesses to be subpoenaed. Charges for drawing affidavits, and for jurats and seals thereto, and for filing the same have been uniformly disallowed by the accounting officers for the reasons above stated."

Whether the clerk was entitled to charge the Government with the fees for entering the order of the judge to subpœna defendant's witnesses was not involved in that case, and the language above quoted implies that entering the order to subpœna defendant's witnesses would be a proper charge against the Government, and such seems to be the proper construction to be placed upon section 878. The entering of such an order of the court requiring certain things to be done at the expense of the United States seems to be no different from the enter