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By the terms of a contract dated December 12, 1911, Michael T. Barrier, hereinafter referred to as "the contractor," undertook and agreed

66* * * to furnish all of the labor and materials and do and perform all of the work required in the construction and completion of one (1) brick dormitory, No. 90, at the Pueblo Bonito Indian School, New Mexico, for the sum of eight thousand three hundred seventyfour dollars and sixty-three cents ($8,374.63) "—

in strict accordance with the terms of specifications, etc., thereto attached, the work to be commenced "within a reasonable time after date of notification of approval of the contract by the Secretary of the Interior," and to be completed "on or before August 1, 1912," it being further agreed in this connection

66* * ** That an extension of this contract beyond the time specified for its completion will neither be asked for by the party of the second part (contractor) nor granted by the party of the first part."

By article 5 of said contract it was stipulated

"That time shall be considered an essential feature of this contract and that in case of failure upon the part of the party of the second part to complete this contract within the time as specified and agreed upon, the party of the first part will be damaged thereby, and the amount of said damages being difficult, if not impossible, of definite ascertainment and proof, it is hereby agreed that the amount of said damages shall be estimated, agreed upon, liquidated, and fixed in advance, and they are hereby agreed upon, liquidated, and fixed at eight dollars ($8) for each and every day the party of the second part shall delay in the completion of this contract and this sum per day for each and every day of delay beyond August 1, 1912, in the completion of the work covered by said contract the contractor agreed to pay to the United States, subject only to this proviso:

""

"That if the party of the second part shall, by strikes, epidemics, local or State quarantine restrictions, or by abnormal force or violence of the elements, be actually prevented from completing the work or delivering the materials at the time agreed upon in this contract, and such delay is without contributory negligence on his or their part, such additional time may, with the prior sanction of the Commissioner of Indian Affairs and the Secretary of the Interior, be allowed him or them, in writing, for such completion as in the judgment of the party of the first part, or his successor, shall be just and reasonable; but such allowance or extension shall in no way affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect, and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon."

The work, so far as appears, was commenced in due time after notification of approval of the contract (contract approved Feb.

14, 1912), but it was not completed until October 31, 1912, three months after the date agreed upon for such completion.

Owing to severe and unusual weather conditions prevailing during a part of the contract period, with the approval of the Commissioner of Indian Affairs and the Secretary of the Interior, the contract time was, on July 30, 1912, extended for 30 days, or until August 31, 1912. September 23, 1912, the contractor applied for a further extension of 30 days because of alleged—

"Failure of railroad to deliver material ordered, absence of plumber owing to sickness and death in his family (and), inability to secure certain specified material of various firms."

This application was approved by the Commissioner of Indian Affairs on October 23, 1912, and by the Secretary of the Interior on November 6, 1912, it being the intent thereby evidently to extend the contract time 30 days from August 31, 1912, or until September 30,

1912.

The work as before stated was completed and accepted on October 31, 1912, and thereupon the unpaid balance of contract price ($3,349.84), less damages at $8 per day for 31 days ($248), was certified to the auditor for payment.

By settlement 33764, dated November 30, 1912, the auditor allowed $2.861.84 of the balance claimed, suspending $488 thereof, and by settlement 37402 he formally disallowed claim for the $488 theretofore suspended, for reasons stated as follows:

"Under the terms of the contract the building was to be completed and delivered on or before August 1, 1912, and if not, then it was stipulated and agreed that there should be deducted and suspended from the contract price, as liquidated damages, the sum of $8 per day for each and every day of delay.

"On July 30, 1912, an extension of the time of delivery was granted for 30 days, carrying the date of completion, etc., to and including the 30th day of August, 1912.

"On the 23d of September following, the work being still uncompleted, a further extension of 30 days was applied for and granted on November 6. The building was completed and delivered on October 31, 1912.

"It is held that there was a delay of 61 days in the delivery, the second extension being unauthorized, and void, for the reason that it was not applied for and granted during the life of the contract, as extended in the first instance. See decision of the Comptroller of the Treasury, Volume XI, page 395, where he states, "It has been uniformly held by this office that

"""Immediately on the failure of a contractor to complete the work provided for in the contract, within the time stipulated, the penalty provided therein for delay vests in the United States and the officers of the United States are without authority to waive it. (See 5 Comp. Dec. 749; MS. Dec. vol. 12, p. 675; MS. vol. 15, p. 489)."'

“ Therefore for this delay of 61 days there is deducted and disallowed the sum of $488."

That the second application for an extension of the contract time was not made or approved before the expiration of the contract time as extended would not ipso facto be a valid reason for declaring the extension granted inoperative. If cause had arisen, during the contract period, which, under the contract terms, entitled the contractor to further time, and the proper officers so found, it was not only within their province, but it was their duty to grant the contractor an extension equal to the delay due to such causes. (52 MS. Comp. Dec., 605, Feb. 5, 1910; 18 Comp. Dec., 710.)

But the reasons advanced by the contractor as entitling him to the second extension were, as a matter of fact, not such as would under the contract terms, entitle him to an extension of the contract time, and neither before nor after the expiration of the contract period was anyone authorized to grant him additional time, in the sense of relieving him from a liability for the agreed damages, on account of delays attributable to such causes. He was entitled, on a proper showing and a finding by the proper officers, to such additional time as was deemed proper in the event he was delayed “by strikes, epidemics, etc.” For delays due to any and all other causes, he assumed full responsibility, and for delays due to other causes it was beyond the power of the officers concerned to excuse him. On his own showing the delay after August 31, 1912, was due to causes for which the contract made him responsible.

For the reasons stated and not for the reasons assigned by the auditor, the auditor's disallowance of claim for the sum properly deducted as liquidated damages on account of the delays for which the contractor was responsible is affirmed, and no difference is certified accordingly.

EXPENSE OF SERVING A SUBPENA.

The provision in the acts of August 18, 1894 (28 Stat., 416), and June 6, 1900

(31 Stat., 639), that no mileage shall be allowed upon any writ not executed prohibits the allowance of mileage for trips which do not result in the execution of the writ, but does not deprive a deputy marshal of reimbursement of expenses in lieu of mileage incurred in going to serve a subpoena where he was prevented by a snowstorm from making personal service and the writ was lawfully served through another person authorized to make

the service. Decision by Comptroller Downey, November 17, 1913:

D. C. Bailey, United States marshal for the district of Colorado, applied October 21, 1913, for a revision of the action of the Auditor for the State and Other Departments in disallowing, by settlement No. 5381, dated September 24, 1913, payment to Field Deputy Marshal Jefferds of $11.45 in reimbursement of expenses in lieu of mileage incurred by the deputy in an alleged unsuccessful endeavor to serve a subpæna on a witness.

This deputy was given a subpæna issued from the district court for the southern district of New York, to be served on a witness in Colorado who lived at a mine 12 miles from Ouray at an altitude of 11,000 feet and over a high mountain range. In attempting the service the deputy encountered at Ouray a snowstorm which made the roads impassable. After waiting two days for the storm to abate and being still prevented by the storm from serving the writ, under instruction from the marshal he deputized the sheriff to serve the subpæna and returned to headquarters.

Several days later the sheriff made service of this writ, which service was supported by affidavit, and the witness proceeded to New York.

The disallowance is based upon statutes which prohibit the allowance of mileage upon any writ not executed. (Act Aug. 18, 1894, 28 Stat., 416; act June 6, 1900, 31 Stat., 639.) It has been held that actual expenses in lieu of mileage may not be allowed where mileage is not allowable.

The only condition imposed by the statutes, supra, is that the writ must have been executed, and they do not require that the service must necessarily have been made by the deputy in person before mileage can be allowed.

Section 8079 of Mills Annotated Statutes of Colorado, 1912, provides :

“The service of any subpana in any court of record in this State may be made by any person of full age not a party to the action on proceeding. Proof of service so made shall be by the affidavit of the person making the same, showing the time, place, and manner in which, and the person upon whom, such service shall have been made.”

It is the duty of a deputy marshal, under ordinary conditions, to serve in person subpænas placed in his hands for service, but where it is impracticable for him to do so, it is proper for him to use the best available means for effecting a lawful service of the writ.

The clear intent and purpose of the statutes prohibiting mileage upon any writ not executed is that the United States shall not be charged with mileage for trips which do not result in the execution of the writ and therefore may lead to other and additional expense in executing the same. It was not designed to deprive a deputy marshal of reimbursement of expenses in lieu of mileage incurred in going to serve a subpæna which was, in fact, lawfully served, merely because the deputy, through no fault of his, was unable to serve the writ in person.

The item is allowed on revision and a certificate of differences will issue accordingly.

Revision is limited to the item of which revision is requested, and the right of revision as to the remainder of the account is reserved.

INCREASES IN COMPENSATION IN THE LIGHTHOUSE SERVICE.

The rate of compensation at a lighthouse station may be increased over the

rate paid during the preceding fiscal year at the same station, provided that the increased rate does not exceed that paid at other stations where the duties to be performed and the conditions met are practically the same. Similarity of service and conditions is a matter of fact lying within the knowledge of administrative officers, and the responsibility of determining this fact rests with the head of the department.

Comptroller Downey to the Secretary of Commerce, November 17, 1913:

I have received through Assistant Secretary Sweet a request dated the 10th instant, for a decision as follows:

Referring to the provision contained in section 7 of the legislative, executive, and judicial appropriation act approved March 4, 1913 (37 Stat., 790), to the effect that 'no part of any money contained herein or hereafter appropriated in lump sum shall be available for the payment of personal services at a rate of compensation in excess of that paid for the same or similar services during the preceding fiscal year,' I have the honor to submit for your decision the matter of whether the proposed increases in pay of the position referred to in the inclosed copy of letter dated November 4, 1913, from the Commissioner of Lighthouses, may be lawfully allowed.

" It will be observed that in each of the cases mentioned no change in duties is contemplated and that the increases in pay are recommended for the reason that it is to the interests of the service that the rates of pay be made to correspond with those existing at other light stations where the conditions to be met and the services to be performed are practically the same.

“ It is noted that in your decision of June 24, 1913, you stated that the words 'same or similar services are not to be interpreted as

6 applying to services rendered at a particular station but to other stations as well, and in this connection the department will be pleased to be advised whether it is to be inferred that the Secretary may increase the salaries of employees at light stations so long as the increased rates of pay are not in excess of those paid for like services during the preceding fiscal year at other stations where the conditions to he met are substantially the same.'

Quoting from the syllabus, the decision of June 24, 1913 (19 Comp. Dec., 248), holds that

“The words 'same or similar services' as used in said section, are not to be interpreted as applying to services rendered at a particular station, but to other stations as well, when the duties performed and conditions met are practically the same at both stations.”

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