intended to exempt the deposits from liability for any debts the depositor might owe the Government. In Taggart v. United States (17 Ct. Cl., 327), it was said. "Where a person is both debtor and creditor of the United States, in any form, the officers of the Treasury Department, in settling the accounts, not only have the power, but are required in the proper discharge of their duties, to set off the one indebtedness against the other, and to allow and certify for payment only the balance found due on one side or the other." I am of opinion, therefore, that said act does not apply to debts due the Government, and that the amount of such debts should be set off against the deposits. Section 13 of the act of February 16, 1909 (35 Stat., 622), provides: "That persons confined in prisons in pursuance of the sentence of a naval court-martial shall, during such confinement, be allowed a reasonable sum, not to exceed three dollars per month, for necessary prison expenses, and shall upon discharge be furnished with suitable civilian clothing and paid a gratuity, not to exceed twenty-five dollars; Provided, That such allowances shall be made in amounts to be fixed by, and in the discretion of, the Secretary of the Navy and only in cases where the prisoners so discharged would otherwise be unprovided with suitable clothing or without funds to meet their immediate needs." The naval appropriation act of March 3, 1909 (35 Stat., 756), under the head of "Transportation," provides: "That the Secretary of the Navy is hereafter authorized to transport to their homes or places of enlistment, as he may designate, all discharged naval prisoners; the expense of such transportation shall be paid out of any money that may be to the credit of prisoners when discharged; where there is no such money, the expense shall be paid out of money received from fines and forfeitures imposed by naval courts-martial." Worth, the claimant, was marked a deserter on the rolls of the U. S. S. New Jersey, his accounts closed on March 4, 1907, and transferred to the paymaster in charge of deserters' accounts, which paymaster in turn transferred Worth's accounts to the Auditor. When Worth was apprehended and delivered on board the U. S. S. Lancaster, on March 10, 1909, the Auditor transferred his pay accounts to the pay officer of that vessel, but, apparently through inadvertence, failed to transfer his deposit account. When Worth was discharged there was therefore apparently nothing due him, although in reality there was due him the said deposit with interest on the same which should have been paid him at that time. By reason of said error and the mistaken belief that there was nothing due him at the time of his discharge he was furnished under the authority of the acts of February 16 and March 3, 1909, supra, a gratuity of $10 and transportation including subsistence to Philadelphia, Pa., at a cost of $8.55, aggregating $18.55. On this revision the matter will be adjusted. The claimant's account is stated as follows: Cr . Amount of deposit................ $50.00 Interest on same at 4 per cent from October 11, 1906, to 5.77 $55.77 Dr . Amount of indebtedness at time of discharge as shown above. 20.80 Balance due claimant. 18.55 39.35 16.42 COMPENSATION OF POSTMASTER SERVING, DURING LEAVE OF ABSENCE, AS GUARD OF PRISONERS. A postmaster, receiving a per annum salary, who is upon leave of absence, and during such period of leave is employed by a United States marshal to guard prisoners who are being transported by the marshal, is entitled to compensation for his services as guard, there being no incompatibility between the two positions. Comptroller Tracewell to Henry W. Mayo, United States marshal, March 2, 1910: I am in receipt of your letter of the 18th instant, as follows: "On a recent trip to Atlanta, Ga., with United States prisoners, several guards were employed, one of whom is a postmaster receiving a salary of $2,000 per annum. Α leave of absence was granted him by his department, coverin the period while he was employed as such guard. "Question. Am I authorized to pay for the services of the postmaster while actually and necessarily employed as a guard, not exceeding $2 per day?" Although you do not definitely state that a demand has been made upon you to pay for the services of the postmaster while acting as a guard over United States prisoners, such demand will be assumed, otherwise the Comptroller would be without jurisdiction to decide the question presented, he being without authority to pass upon questions that are merely hypothetical. The question to be decided, therefore, is whether there is any legal incompatibility between the office of postmaster and the position of guard over United States prisoners in the custody of the marshal that would prohibit the payment of guard hire to the postmaster while acting as guard, during which time he was on leave and excused by his department from the performance of his regular duties as postmaster. It is clear that it is not a part of the official duties of a postmaster to guard prisoners who are being transported by the marshal, there being no law or regulation imposing such service as an additional duty upon a postmaster. It must therefore be concluded that the postmaster in this case was performing a service arising out of an employment separate and distinct from the office of postmaster, and, in the absence of any statute to the contrary, is entitled to compensation for services rendered as guard, provided such compensation is fixed by law or regulation, there being no legal incompatibility between the two positions. Paragraph 671 of the Instructions of the Attorney-General, dated April 1, 1904, provides as follows: "When actually necessary for the safe transportation of prisoners, guards may be employed and paid not exceeding $2 per day for the time actually and necessarily employed. Form 30 should be used as a certificate of the guard and a receipt for the amount paid him.” The above paragraph governs marshals and their office deputies in the employment and payment of guards necessary for the safe transportation of United States prisoners. In view of the above I see no legal objection to the payment of guard hire not exceeding $2 per day to the postmaster for (See the time he was actually and necessarily employed as guard over the United States prisoners mentioned by you. 10 Comp. Dec., 726; 19 Op. Att. Gen., 121, 126.) COST OF INSPECTION AND SUPERINTENDENCE UNDER CON TRACTS WHICH DO NOT REQUIRE AN INSPECTOR TO BE CONSTANTLY EMPLOYED. Under contracts for furnishing certain goods which provide that "any additional cost of inspection or other loss or damage resulting from the contractor's delay will be charged to him," and there is nothing in said contract requiring the United States to keep an inspector constantly employed on the contract work, the cost of inspection would not necessarily depend upon the length of time occupied in completing the contract work, and, under such circumstances, the finding of fact by the proper officer, that delays in delivery resulted in no excess cost of inspection or other loss or damage to the United States, would be controlling and no charge therefor will be made against the contractors. There is a material distinction between those contracts which are construed as providing for all cost of inspection and superintendence during delay and those contracts merely providing for any additional cost resulting from delay. Assistant Comptroller Mitchell to the Secretary of War, March 3, 1910: By your authority, the Quartermaster-General, U. S. Army, February 21, 1910, requests my decision of the question whether the amount of $325.05 will, if paid by M. Gray Zalinski, major and quartermaster, U. S. Army, New York, N. Y., under the facts appearing in the inclosed voucher, be passed to his credit. The voucher shows that the proposed payment is for 1,222 pairs of summer drawers at $0.266 per pair, delivered by Brill Brothers, of New York, N. Y., under their contract dated February 25, 1909. It appears from the accompanying papers that the time for completing the deliveries under the contract had expired before the delivery was made and accepted. The specifications attached to and made a part of the contract provided that: "Par. 33. Any additional cost of inspection or other loss or damage resulting from the contractor's delay will be charged against him." The receiving quartermaster has certified that "the summer drawers have been accepted as satisfactory to the United States, and that the delay in deliveries resulted in no excess cost of inspection or other loss or damage to the United States." It is provided in the specifications that: "16. All goods delivered will be inspected and passed upon as soon as practicable and without unnecessary delay." Articles IV and VI of the contract provide in part, respectively: "Article IV. That the party of the first part shall have the right at any time to inspect, in person or by duly authorized agent, the articles in process of manufacture, and to reject any materials or workmanship not conforming to requirements; * * * “Article VI. That the articles herein contracted for shall be examined and inspected, without unnecessary delay after being delivered, by a person appointed by the United States; ** * "" There is nothing in the contract which requires the United States to keep an inspector constantly employed to make the inspections required by this contract, so that the cost of inspection would necessarily depend upon the length of time taken to make the delivery or perform the contract work. It does not necessarily follow, therefore, that the cost of inspection and superintendence was increased by reason of the delay in delivery. The finding of fact by the Quartermaster's Department that delay in deliveries "resulted in no excess cost of inspection or other loss or damage to the United States," not being inconsistent with the terms of the contract, is controlling. (See 15 Comp. Dec., 103, and MS. Comp. Dec., in the case of Sigmund Eisner, dated January 10, 1910.) This decision is not inconsistent with the decisions of this office reported in 12 Comp. Dec., 12; id., 15. The contracts in those cases were construed as providing for the payment of all cost of inspection and superintendence during the delay and not merely "any additional cost resulting from the delay." There is a material difference between the language used in the contracts in the cases cited and in the case now |