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In the absence of regulations providing for lodging for an enlisted man in

the Marine Corps while traveling on detached duty, he is entitled only to his actual necessary expenses therefor.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

September 7, 1895. R. Doerner, a sergeant in the United States Marine Corps, on special duty as clerk in the office of the adjutant and inspector, appeals from the settlement by the Auditor for the Navy Department of his claim for expenses in traveling, under orders, from Washington to Brooklyn and return, including five days' subsistence. His claim was as follows:

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Sleeping-car fare, two nights, at $2..........

.............................

... $4.00

$Ł. Street-car fare ........ Special meals when no hotel bill is incurred. Room at hotel, four nights, at $1.25 per night......

.................... 12.50

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5.00

Total .........

.............. 22. 10 Said account was approved by the Secretary of the Navy for the full amount claimed. The following was allowed by the Auditor: Subsistence for 5 days, at $1.50 per day....... .......... $7.50 Less extra rations received for 5 ays, at 75 cents per day...... 3. 75

-- $3.75 Lodging $4, car fare 60 cents........ Less commutation for quarters for same time....

1.80

......... 4.60

Total .........

................... 5.55

Sergeant Doerner claims that having been detailed for special duty as a clerk for nearly twenty years, and being sent to Brooklyn on this trip simply for the purpose of performing clerical service, he is entitled to the same allowance as a clerk. Sergeant Doerner is not, however, a clerk, but a sergeant of the line detailed for special duty. He does not come within the classes of commissioned and noncommissioned officers who are, by paragraph 1212 of the Army Regulations, entitled to an allowance for sleeping-car berth when traveling on duty without troops.

In the act approved July 26, 1894 (28 Stat., 138), making appropriations for the naval service for the fiscal year ending June 30, 1895, under the item appropriating pay for enlisted men, the following words were inserted : “And for the expenses of clerks of the United States Marine Corps traveling under orders." This same phrase has been incorporated into the appropriations for the current fiscal year for the Marine Corps, but prior to the appropriation for 1895 it does not appear.

In the same act on page 139, under the item appropriating for the hire of quarters, is found the following: “For hire of quarters for seven enlisted men employed as clerks and messengers in commandant's, adjutant and inspector's, paymaster's, and quartermaster's offices, Washington, District of Columbia.” Thus it appears that Congress has made a specific appropriation to cover traveling expenses of clerks of the Marine Corps. But Sergeant Doeruer is an enlisted man, and the amount claimed by him, $12.50, for special meals can not be allowed, as he falls within the limitation of paragraph 1424 of the Army Regulations, which provides that "commutation of rations may be paid to a soldier detached traveling under orders at the rate of $1.50 per day, or less, as the Secretary of War may direct, when it is impracticable for him to be subsisted as required by paragraph 1420.” Being an enlisted man, although detailed on clerical service, I must hold that he is entitled to $1,50 per day, less 75 cents per day which he is regularly allowed for subsistence.

In the absence of any regulation prescribing the amount to which an enlisted man is entitled for lodging while traveling on detached duty, and in accordance with the practice in adjusting such claims for soldiers of the Army, I hold that the claimant is entitled to his actual expenses, which he places at $1.25 per night for four nights, without any deduction for commutation of quarters. The $21 per month specifically appropriated for hire of quarters, is allowed him in lieu of a regular abiding place at the Marine Barracks, presumably for good and sufficient reasons, and can not be properly applied in part payment of such transient lodgings. In view of the approval by the Secretary of the Navy of the amount charged, $1.25 per night, there is no propriety in the accounting officers of the Government attempting to go behind this expression of the head of the Navy Department as to the reasonableness of this charge and reducing it to $1 per night, as has been done in this settlement.

The charge of 60 cents for street car fare is properly allowable under the appropriation for transportation,

11268—VOL 2- 10

The account should therefore be settled as follows:
Subsistence for 5 days, at $1.50 per day...

......... $7.50
Less commutation of rations for 5 days, at 75 cents per day.... 3. 75
Car fare..
Room at a hotel four nights at si 25 ner nicht mencecerneredeneer

... 5.00 Total allowed........

................ 9.35 The accounting officers are authorized to allow only such expenses as are provided for in the law and the regulations, and they have no discretion to allow actual expenses when, as in the present case, a man is ordered to travel and perform cleri. cal duties at another point, although in obeying such orders he may incur expenses in excess of the amounts provided by the regulations.

EDW. A. BOWERS,

Acting Comptroller.

ADVANCES OF FUNDS FOR EXPENSES OF AN OFFICER OF THE COAST AND GEODETIC SUR. VEY.

An assistant in the Coast and Geodetic Survey appointed by the President

as a delegate to a convention held abroad is not, while performing that duty, acting as a chief of party of the Survey, and an advance of funds to pay his expenses is not authorized.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

September 9, 1895. SIR: I am in receipt of your letter of the 7th instant in which you state that Mr. O. H. Tittmann, assistant in charge, was appointed by the President as a delegate to the general conference of the International Geodetic Association at Berlin, and has applied to you for an advance of $300 on account of his expenses in attending that meeting. You ask whether you will be authorized in making the advance requested.

Mr. Tittman was appointed under the authority contained in public resolution No. 37 of July 23, 1894 (28 Stat., 587). In the sundry civil appropriation act of March 2, 1895 (28 Stat., 922), the sum of $550 was appropriated “for expenses of the attend. ance of the American delegate at the general conference of said association.” Mr. Tittmann is a regular assistant in the Coast and Geodetic Survey and as such gives bond in the sum of $2,000 for faithful performance of duty and a true account

ing for all moneys of the Government coming into his hands while performing the duties of a chief of party.

In the appropriation act above quoted there is the following clause:

* Prorided, That no advance of money to chiefs of field parties under this appropriatiou shall be made unless to a commissioned officer or to a civilian officer who shall give bond in such sum as the Secretary of the Treasury may direct."

Under the regulations of the Department, advances of funds are made by you to chief's of field parties who have given bond in order that they may carry on the operations of the Survey in the field. I am clearly of the opinion that you would not be authorized in advancing the sum requested by Mr. Tittmann. In going to Berlin under appointment by the President, he certainly is not a field officer of the Survey on duty in the field, and should be reimbursed for his expenses in the usual way upon the presentation of proper vouchers and accounts,

Were Mr. Tittman to be sent on field duty, he would be required by the Secretary of the Treasury to give a new bond, his present bond being more than four years old. See act of March 2, 1895, (28 Stat., 808); Treasury Department circular No. 94, May 2, 1895. Respectfully, yours,

Edw. A. BOWERS,

Acting Comptroller. Mr. R. J. GRIFFIN,

Disbursing Agent, Coast and Geodetic Survey.

PART PAYMENT ON CONTRACT.

Under a contract for an electrical plant with condition that the contractors

shall be paid when the inaterials have been delivered and accepted, payment for the accepted portions of the plant is not authorized until a defective part is replaced and the plant accepted as a whole, the contract not being severable, although the contractors submitted bids for each separate part of the plant.

TREASUPV

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

September 10, 1895. SIR: I have the honor to acknowledge the receipt, by reference, of the letter of C.W. Raymond, major, Corps of Engineers, asking that the letter of the McCay-Howard Engineering Com. pany, requesting payment for part of materials comprising the

electrical plant delivered by them at Fort Delaware, be referred to the proper accounting officers of the Treasury Department for an opinion as to whether a partial payment for the accepted articles can be properly made under the provisions of the contract under which they were so delivered. The contract calls for the delivery, at Fort Delaware, of two engines, one boiler, two generators, switch board, and complete testing apparatus. It appears that all the articles contracted for have been delivered, tested, and found satisfactory, except the generators (dynamos), which heat up in working beyond the limit specified in the contract.

The contractors now suggest that, inasmuch as their bids submitted separate figures upon each of these articles, they are entitled to payment for such as have been tested and found suf. ficient, under the terms of the contract. They admit the defective heating of the dynamos and promise to rectify the defect as soon as possible. The contract provides that payment shall be made to the said McCay-Howard Engineering Company when the materials contracted for shall bave been delivered and accepted. A clause in the printed form of contract used, providing that a certain per cent. of the whole amount due thereunder shall be reserved from each payment until the whole amount of the materials shall have been delivered, was stricken out of the contract.

This would seem to indicate that the contracting parties treated the contract as an entirety, and intended that there should be a delivery and acceptance of the materials mentioned therein in advance of payment therefor. The plain and mani. fest purpose of the Government in entering into the contract was to procure an electrical plant at Fort Delaware, and if any part of the machinery necessary and required to a success. ful operation of the same is radically defective, it will frustrate and defeat the whole purpose and intent of the contract. (See Am. & Eng. Enc. of Law, vol. 3, p. 925, and cases cited.)

I am of the opinion that the contract is to be treated as an entirety, and that payment can not therefore be lawfully made until all the materials contracted for have been delivered and accepted by the Government. Respectfully, yours,

EDW. A. BOWERS,

Acting Comptroller. The SECRETARY OF WAR.

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