to it under the law? We think it did. In other words, we think his status as to pay remained as of service beyond the seas until he reached home, if in the meantime he obeyed orders and was within his right.

"It would seem, indeed, unjust so to construe the law as to deprive a naval officer of the right to allow his time for leave of absence to accumulate while on service beyond the seas to enable him to employ it for the very laudable purpose of visiting foreign countries on his return and still retain his pay status during such time."

The court ordered judgment in favor of Izard for increase of pay for duty beyond the seas covering the period from the date he was. detached from and left his station at Manila, P. I., to the date of his arrival in the United States in New York.

The act of August 24, 1912, supra, as amended by the joint resolution of the same date, supra, does not purport to repeal, amend, or modify in any manner the act of June 30, 1902, supra. The latter act remains in full force and effect, and unless some subsequent law deprives an officer on duty at a foreign station from receiving foreign-service pay, he is entitled to said increase of pay from the "date of departure from said States to the date of return thereto."

It is observed that the act of August 24, 1912, supra, does not impose a penalty upon an officer who remains detached from his troop, battery, or company after December 15, 1912, but only upon the superior officer who, by order or permission or failure or neglect to issue or cause to be issued the proper orders or instructions at the proper time for his relief, permits the officer to remain detached in violation of the provisions of the statute. If an officer is permitted to remain on detached service in violation of the terms of said act, the law imposes no penalty upon him, but upon the officer responsible for it.

But in the case upon which the auditor's decision is founded, was there any breach of duty? The act of August 24, 1912, says:

"But nothing in this proviso shall be held to apply in the case of any officer for such period as shall be actually necessary for him, after having been relieved from detached service to join the troop, battery, or company to which he shall belong in that branch in which he shall hold a permanent commission."

Capt. Browne had earned his right to the leave of absence which the law gave him. In the enjoyment of it he was privileged to travel abroad as he pleased, conditioned only that he be with his regiment at the termination thereof. Under such circumstances it may be said, I think, that the time "actually necessary" for him to join his command, after relief from duty, was the time during which he was permitted to delay because of the leave of absence granted him, as within that time he was obeying orders and was within his right. Suppose that on December 15, 1912, and thereafter, for a period of

two months, the officer was sick and unable to travel, could it be said that the period of his delay because of such sickness was not “ actually necessary" to join the troop, battery, or company to which he belonged? I think not.

The principle of the decision of the Court of Claims in the Izard case would seem to be applicable in the case of Capt. Browne, and under the laws cited and for the reasons above stated, I am of opinion that foreign-service increase of pay continued to be due said officer until the date of his arrival in the United States. (See 25 MS. Comp. Dec., 397, dated Apr. 27, 1903; 17 Comp. Dec., 330.)

It is to be noticed that the act of August 24, 1912, prohibits detachment or remaining detached " for duty of any kind." It can hardly be said that it requires immediate presence with his command, for leave granted while on detached duty is not the performance of duty under the detachment.

The decision of the auditor is disapproved.

ACCOUNTING FOR INSURANCE PAID FOR LOSS BY FIRE TO PROPERTY UNDER CONSTRUCTION.

Where under a contract barges under construction are required to be insured for the benefit of the Government and loss by fire occurs, the whole amount of the insurance should be paid to the Government and deposited to the credit of the appropriation under which the work is to be performed. The value of materials lost or damaged and for which contractor has been paid should be retained by the Government from the insurance received to cover the loss and the values of material lost or damaged and not paid for by the Government may then be paid to the contractor from the appropriation.

Assistant Comptroller Warwick to the Secretary of War, July 21, 1913:

By your authority the Chief of Engineers, United States Army, submitted June 27, 1913, for decision an inquiry of Capt. A. B. Putnam, district engineer officer, Little Rock, Ark, as to the disposition to be made of certain money received by him as the insurance for losses on the dredges McGregor and Taber through the burning of the shop of the Dubuque Boat & Boiler Works, the contractors for construction of the dredges.

The contract was made May 14, 1912, for the construction of two dredges complete, for the sum of $295,514, payments to be made monthly on estimates of inspector, and a percentage of 10 per cent to be reserved from each payment until completion and acceptance of the dredges. The parts paid for were to become the sole property of the United States, but not so as to relieve the contractors from sole responsibility for the proper care and protection of the parts prior to delivery of the dredges; and the contractors agreed to

J

assume full responsibility for any damage or injury from any source or cause. (Spens., pars. 9 and 15.)

The work while in progress was required to be insured for the benefit of the United States, the specifications of the contract providing

"24. Insurance. The contractor shall keep the dredges or component parts thereof insured against fire and marine risks, at his own. cost, for and in behalf of the United States, and in the name of the contracting officer, to at least the full amount of the payments which shall have been made by the United States.

* *

The loss as to the dredges by the fire at the contractors' plant is reported to have totaled $3,411.77, and was paid to the contracting officer in two drafts totaling together the amount of the loss, but that

"Of this loss, $1,603.27 represents the amount lost on material for which the Government had already paid, and the balance, $1,808.50, represents the amount due the boiler works for material which they have furnished, but for which they have not been paid by the Government."

The percentage of completion of the work is reduced by the loss on the materials, and so far as such materials were taken into consideration in the payments made to the contractors, the insurance must be applied in the first instance to restore the payments to the proper percentage of completion.

This will be done by depositing to the credit of the appropriation under which the dredges were being constructed the amounts paid. therefrom for the materials destroyed, which is understood to total $1,603.27.

Of the remainder of the insurance received, the $1,808.50 being for materials furnished but not yet paid for, would be on account of whatever obligation there might be on the part of the United States to make payment for such materials. The United States could not properly retain that portion of the insurance without paying the contractors for the materials which the amount represents. This would seem to be readily accomplished by simply delivering the draft for $1,808.50 to the contractors, but it would then be in the status of a payment of insurance to the contractors under the insurance policy and unless the contractors were entitled to such insurance there would be some question of the authority for the payment.

The better practice, so as to have an accounting of the full insurance paid, would seem to be to place this amount of the insurance 42853°- -VOL 20-14- -3

also to the credit of the appropriation under which the dredges were constructed and then pay the contractors from the appropriation a similar amount as for materials furnished under the contract if that be according to the estimated percentage of completion before the loss by fire, less the proper retained percentages, noting on the voucher that the payment is for materials lost by the fire and unpaid for, but reimbursed the Government in that amount under the insurance policy.

In strictness a payment for materials that have been destroyed would not be authorized, but such objection would be negatived where the insurance money therefor is actually received by the Government.

While this procedure would also seem to augment the amount of the appropriation, the deposit to the credit of the appropriation and the payment to the contractors would be nearly contemporaneous even if the payment to the contractors was delayed somewhat until the payment by the insurance company where made by draft could be considered as cash, and there would be no permanent augmentation of the amount of the appropriation and in reality no augmentation at all.

The status of the appropriation should thus be of having paid no more than the estimated percentage of completion the work represents after the fire and withholding also the proper percentages provided for by the contract. So far as the materials lost are concerned, the contractors would have to replace it in carrying on the 'construction, and it would then figure in subsequent estimates of work done and materials furnished, and payment be made from the appropriation accordingly.

PURCHASE OF ENVELOPES FOR USE OF HEADQUARTERS OF MILITARY DEPARTMENTS.

The act of June 26, 1906 (34 Stat., 476), authorizing the Postmaster General to purchase all envelopes for the executive departments and Government establishments, precludes the purchase of envelopes from the appropriation "Contingencies, headquarters of military departments" otherwise than as authorized by said act.

The discretion conferred upon division or department commanders in the appropriation "Contingencies, headquarters of military departments" (36 Stat., 1037), can not be regarded as authorizing a purchase otherwise prohibited by law.

Decision by Assistant Comptroller Warwick, July 22, 1913:

Lieut. Col. Archibald Campbell, department adjutant, United States Army, appealed June 28, 1913, from the action of the Auditor

for the War Department in disallowing (per settlement No. 25739 of Nov. 30, 1912,) certain items, aggregating $20.05, in his accounts for the period ending September 30, 1912.

The items in question represent payments made for envelopes purchased for use at headquarters, Hawaiian Department of the Army. (See voucher No. 1, January, 1912; voucher No. 2, February, 1912; voucher No. 6, June, 1912.)

The auditor disallowed said items because the purchases were not made in accordance with the provisions of section 96 of the act of January 12, 1895 (28 Stat., 624), and the act of June 26, 1906 (34 Stat., 476).

Section 96 of the act of January 12, 1895, provides:

"The Postmaster General shall contract for all envelopes, stamped or otherwise, designed for sale to the public, or for use by his own or other departments, and may contract for them to be plain or with such printed matter as may be prescribed by the department making requisition therefor: Provided, That no envelope furnished by the Government shall contain any business address or advertisement."

The act of June 26, 1906, provides:

"The Postmaster General is authorized to extend, for a period not exceeding six months, the contract for official, registry, and deadletter envelopes for the postal service for the calendar year ending December thirty-first, nineteen hundred and six; and thereafter the Postmaster General shall contract, for a period not exceeding four years, for all envelopes, stamped or otherwise, designed for sale to the public, or for use by the Post Office Department, the postal service, and other executive departments, and all Government bureaus and establishments, and the branches of the service coming under their jurisdiction, and may contract for them to be plain or with such printed matter as may be prescribed by the department making requisition therefor; Provided, That no envelope shall be sold by the Government containing any lithographing or engraving, nor any printing nor advertisement, except a printed request to return the letter to the writer."

It has been repeatedly held by this office that the above-quoted laws prohibit the purchase of envelopes by or for any Government department, bureau, or establishment, or any branches of the service. coming under their jurisdiction, in open market or in any other manner than under contract made by the Postmaster General, except in those cases where, due to an unforseeable exigency, the need for the envelopes is so urgent as not to permit of the delay necessarily incident to obtaining them through the Postmaster General. (13 Comp. Dec., 144; 14 id., 325; 14 id., 674; 39 MS. Comp. Dec., 803, Nov. 27, 1906; 45 id., 1722, June 6, 1908; 63 id., 914, Nov. 29, 1912.)