CON CONTRACT FOR THE CONSTRUCTION OF JETTIES IN GALVESTON HARBOR. Supplemental decision to that of May 22, 1896 (ante, p. 565) in the matter of the contract of O'Connor, Laing & Smoot for the construction of jetties in the harbor at Galveston, Tex. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, June 13, 1896. SIR: I am in receipt by your reference of a letter from Messrs. O'Connor, Laing & Smoot, referring to my letter to you of May 22 (ante, p. 565) in regard to payment for maintaining the railway upon the south jetty in Galveston Harbor during the progress of the work of extending said jetty and asking, for reasons stated in their letter, that I review my former decision upon this question. After carefully considering their communication I see no reason to change the opinion expressed in my letter of May 22, that during the work of extending the south jetty the cost of keeping in repair the railway both upon the extension and upon the original work should be borne by the contractors and not by the United States. The argument made by the contractors substantially is that the railway is a part of the works, and although it is required by paragraph 9 of the specifications that the railway shall be kept in repair by the contractors "during the period of the contract," yet that only means during the period of original construction, and as the railway is a part of the works it is to be maintained, after the work of construction ceased, at the expense of the United States under paragraph 18 of the specifications, which provides for the maintenance of the works for a period of five years after the termination of the original construction; and that this obligation to maintain the railway, so far as that portion upon the original work is concerned, was not affected by paragraph 19 of the specifications, which provides that "all of the terms and conditions which govern the original work shall apply to such extension," because that portion of the railway is required to be maintained at the expense of the United States under paragraph 18. The question whether under paragraph 18 the cost of maintaining the railway during the period of maintenance is to be borne by the United States was not decided in my letter of May 22, because at that time that question was not before me for decision; nor is it now, for the work of extending the jetties was then and is now in progress, and it was then and is now only necessary to determine whether during the period of such extension the burden of keeping the railway in repair is upon the contractors or upon the United States. Although that question was not decided, I intimated in my former letter that the claim of the contractors that the railway should be kept in repair during the period of maintenance at the expense of the United States as a part of the works might be correct. I thought, however, whether that contention were correct or not that by paragraph 19 the expense of keeping the track in repair during the period of maintenance was to be borne by the contractors. Paragraph 9 of the specifications provides: "During the period of the contract, 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." * A literal construction of this paragraph would require the contractors to keep the railway in repair during the entire period of the contract, which was to extend for five years after the work of original construction ceased; for they are clearly allowed the use of the railway for the purpose of transporting materials needed for repairs to the jetty during the period of maintenance, and apparently as a condition of such use they are required to keep the track and trestle in good repair. There is much, however, in the whole contract, as intimated in my former letter, to the effect that during the period of maintenance alone the expense of keeping the track in repair was to be borne by the United States and not by the contractors; but even if the track during the period of maintenance alone is to be kept in repair by the United States I see nothing in this which indicates that during the period of extension the entire track should not be maintained by the contractors. While paragraph 2, under the head of “General method of construction," provides for the railway substantially as a part of the jetty, it is clear from a reading of the whole contract that the jetty and the railway are for many purposes distinct. For instance, paragraph 9 provides that the contractors shall keep in repair not only the railway built by them under the contract, but also the railway previously constructed; while paragraph 10 provides that— "Whenever it becomes necessary from the action of storms or other causes to rehandle material which has once been accepted, the contractor shall furnish the necessary labor at cost price" so that even during the period of original construction the expense of the repairs to the jetties was to be borne by the United States, although repairs to the railway during that period were to be made by the contractors. As paragraph 9, providing for the use of the railway, required the contractors to repair at their own expense that portion of the railway already in existence when the contract was entered into, as well as that portion of the railway built under the contract "during the period of the contract," which as stated in my former letter "must at least mean during the period of construction," and as paragraph 19 provides that during the work of extension "all of the terms and conditions which govern the original work shall apply," I am clearly of the opinion that during the period of extension the expense of maintaining in repair the whole railway, that upon the extension as well as that upon the jetty previously constructed, including that built before the contract was entered into, is to be borne by the contractors as heretofore stated; otherwise it does not seem to me that full effect is given to the words above quoted from specification 19. Respectfully, yours, The SECRETARY OF WAR. R. B. BOWLER, OATH BY RETIRED ARMY OFFICER TO HIS EXPENSE ACCOUNTS WHILE EMPLOYED IN A CIVIL CAPACITY. An officer of the Army on the retired list while employed, under the authority of section 7 of the act of June 3, 1896, in work connected with the improvement of the rivers and harbors of the United States is not engaged in performing military duty and should support his accounts for traveling expenses by his oath as required by the Army Regulations of all civilian employees. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, June 13, 1896. SIR: I have by your reference of May 27 the letter of Maj. William F. Smith, an officer on the retired list and also employed as United States agent in connection with river and harbor work. In his letter he complains that he is required under paragraph 732, Army Regulations of 1895, to make oath to two vouchers covering certain items of traveling expenses incurred by him in the performance of his duties as United States agent. You request a decision of this question, to wit, whether Major Smith, being an officer of the Army of the United States on the retired list, should be required to support his traveling. expense vouchers by an oath or not. Paragraph 732 of the Army Regulations of 1895 provides: "None but the authorized items of traveling expenses of civilians will be allowed. They will in all cases be set forth in detail in each voucher for reimbursement, supported by oath and, when practicable, by receipts." Officers of the Army are not required to swear to their traveling expenses, but certify to the same. Major Smith in his capacity as a retired officer is clearly an officer in the Army of the United States. Attorney-General Olney in an opinion of December 5, 1893 (20 Opin. A. G., 686, 687, and 688), said: "Under section 1094, Revised Statutes, the Army of the United States shall consist 'of officers of the Army on the retired list."" In United States v. Tyler (105 U. S., 246) the Supreme Court decided that officers of the Army on the retired list are still in the military service. See also Wood v. United States (15 C. Cls. R., 151, and 107 U. S., 414). If the travel were performed by him in his capacity as a retired officer on military duty, his contention would be clearly correct, but inasmuch as this service is performed in a civil capacity, it seems to me that the regulation contained in paragraph 732, which is applicable to the traveling expenses of civilians, may be properly enforced in this case. However, as this is a regulation made by the Secretary of War, he would undoubtedly have the right to waive it, if the same seemed advisable to him. It has been decided in reference to Major Smith by the Second Comptroller on December 16, 1890, that he was not entitled to mileage while acting in the capacity of United States agent, a civilian employee, but was entitled to actual traveling expenses only. In my opinion this decision was correct.. In view of the recent legislation in section 7 of the river and harbor act of June 3, 1896, which authorizes the employment of retired army and navy officers in connection with river and harbor works, making possible an extension of this practice, it seems to me very desirable that while such army officers are performing civil duties all regulations applying to civil officers should be made applicable to them, thus clearly distinguishing between their military position and such civil position as they may chance to occupy. It can hardly be claimed that the laws embodied in and interpreted by Army Regulations, 1895, section 1321 et seq., are applicable to retired officers performing travel in civic capacities, for there the orders under which they travel and which are prerequisite to any payment for such travel are orders in connection with military duties. It therefore seems proper that the practice of which Major Smith complains should be continued, as he falls within the category of civilian employees while acting as United States agent. Respectfully, yours, EDW. A. BOWERS, United States Army. The CHIEF OF ENGINEERS, IN RE APPEAL OF G. M. HUMPHREY, UNITED STATES MARSHAL FOR THE DISTRICT OF NEVADA. A defendant who has given bond before a commissioner for appearance at court, with condition that he shall abide the order of the court, does not, when acquitted, come again into the custody of the marshal so as to entitle that officer to a fee for discharging him. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, June 13, 1896. Mr. G. M. Humphrey, the United States marshal for the district of Nevada, appeals from the settlement by the Auditor of his account for the quarter ending September 30, 1895. Among the items disallowed by the Auditor was the following: "Charge for discharge' after discharge on bond disallowed. Not a discharge as contemplated by law, $1." From an examination of the account of the marshal it ap. pears that the defendant had been out on bail in the sum of $500; that a warrant was issued by order of the court in which |