Difference in B. t. u.'s (British thermal units) alone would not indicate the difference in value of the coal furnished and the coal that should have been furnished. That the method adopted by the commander of the Explorer for determining the difference in value of the two kinds of coal is approximately correct is indicated by the fact that because of the contractor's failure to furnish a good grade of coal it was found necessary to purchase additional coal costing, approximately, the same amount as the damages otherwise determined.

From all the facts appearing I think you will be fully justified in deducting from the contract price of the 400 tons of coal in question, $8,400, the sum of $436.80, i. e., 5.2 per cent of the contract price, as the actual damages caused by the contractor's failure to deliver the kind of coal agreed to be delivered. (Peabody v. United States, supra.)

DISMISSAL OF INSTRUCTOR AT NAVAL ACADEMY BY APPOINTMENT OF ANOTHER TO POSITION.

An appointment as an instructor at the Naval Academy, to be effective from date of acceptance, and requiring the appointee to report for duty on taking the oath, the terms of which were complied with, did not dismiss one of the instructors contemporaneously ordered promoted, and, no vacancy being in existence in the office of instructor prior to such promotion, the appointee did not become an instructor, nor entitled to be paid as such, in the interim between reporting for duty and the occurring of the promotion.

Decision by Comptroller Downey, February 14, 1914:

William H. Kadesch applied, February 6, 1914, for a revision of the action of the Auditor for the Navy Department in settlement No. 123718, dated January 6, 1914, of his claim for pay as an instructor, United States Naval Academy, from September 22 to 28, 1913.

An appointment was issued to claimant as an instructor at the Naval Academy by the Secretary of the Navy September 19, 1913, as follows:

"You are hereby appointed an instructor at the United States Naval Academy, Annapolis, Md., at $2,400 per annum, for the period from your acceptance of this appointment until July 1, 1914.

"Inclosed herewith is a blank form of oath of office, which you will execute and return to the department with your letter of acceptance. Having taken the oath of office, you will report to the Superintendent of the United States Naval Academy for duty."

Claimant executed the oath and reported for duty September 22, 1913, and the superintendent of the academy states that he was on actual duty from September 22 to 28, 1913, both dates inclusive. He has been paid as an instructor from and including September 29,

The civil offices of instructors at the Naval Academy exist by virtue of the annual appropriation acts, that for the fiscal year 1914, under the head of "Pay of professors and others, Naval Academy," providing for "five instructors at $2,400 each." (Act of Mar. 4, 1913, 37 Stat., 906.) No vacancy existed in these offices of instructors prior to September 29, 1913, unless the appointment of claimant operated to create one.

At time of appointment claimant was not in the service of the Government. His appointment was due to a series of promotions arising out of the filling of a vacancy in the corps of professors of mathematics caused by the death of Prof. Philip R. Alger on February 23, 1912.

To this vacancy Theodore W. Johnson, professor of mechanical drawing at the Naval Academy, with compensation at $3,000 per annum, was nominated August 25, 1913, confirmed August 28, 1913, commissioned September 11, 1913, and accepted and executed oath September 29, 1913. This appointment was an original entrance into the Navy and became effective from date of acceptance and oath, September 29, 1913. (19 Comp. Dec., 358; 13 id., 606.)

To the position of professor of mechanical drawing, $3,000, Naval Academy, Mr. C. L. Leiper, one of the five instructors at the academy, was advised by the Secretary of the Navy, September 19, 1913, that he was promoted, as follows:

"You are hereby promoted from instructor, at $2,400, to professor of mechanical drawing at the United States Naval Academy, Annapolis, Md., at $3,000 per annum, for the period from September 1, 1913, to July 1, 1914.

"Inclosed herewith is a blank form for oath of office, which you will execute and return to the department with your letter of acceptance. Having taken the oath of office, you will report to the superintendent of the United States Naval Academy for duty."

Mr. Leiper accepted the promotion and executed the oath September 25, 1913.

On September 19, 1913, an appointment was issued to claimant as an instructor at the academy, $2,400 per annum, and he executed the oath and accepted same on September 22, 1913, as heretofore shown.

The auditor disallowed his claim for pay from September 22 to 28, 1913, because

"The number of instructors at $2,400 per annum is limited for the fiscal year 1914 to five.

"Notwithstanding the fact that he took the oath on September 22, 1913, a vacancy did not occur until September 29, from which date he has been properly paid. Hence there is no appropriation from which payment could be made prior to that date."

As stated by the auditor, the number of instructors at the academy for the fiscal year 1914 is limited by Congress to five. The Secretary of the Navy could not create such an office nor add to such number. (23 Op. Att. Gen., 30, 35.)

Claimant was therefore not an instructor at the academy from September 22 to 28, 1913, and not entitled to pay as such, unless his appointment to such a position operated as a removal of one of the instructors then in office.

It is true that the power to dismiss is an incident of the power to appoint, and, in the absence of statutory restriction, an officer may be removed by the mere appointment of another in his place, where there is a manifest intent on the part of the appointing power to thereby separate the incumbent from the service. (See McElrath v. United States, 102 U. S., 426; Blake v. United States, 103 id., 227; Keyes v. United States, 109 id., 336; Mullan v. United States, 140 U. S., 240.) In the absence, however, of such an intent, as where the appointment makes no mention of the dismissal or separation of the incumbent from the service, and he is contemporaneously therewith promoted to a higher position, the appointment of another to his place does not operate to remove him from the office, and he continues in the office until his vacation of it by entrance into the higher office to which promoted. (See 23 Op. Att. Gen., 30, 36, 37; 29 id., 598; Fletcher v. United States, 26 C. Cls., 542, 562.)

In this case the appointment of claimant did not state that he was appointed an instructor "vice C. L. Leiper, dismissed," or language to that effect, nor did it in fact designate the particular one of the five offices of instructors to which he was appointed, and the intent to promote Prof. Leiper rather than separate him from the service is manifest.

It is therefore held that the appointment of claimant as instructor did not operate to dismiss Prof. Leiper, and that he did not vacate the office of instructor until his promotion to the position of professor of mechanical drawing became effective. This could not occur until the vacation of that office by Prof. Johnson, September 29, 1913. Prior to that date claimant was not an instructor and not entitled to pay as such.

REIMBURSEMENT OF LIVING EXPENSES TO A CIVILIAN EMPLOYEE OF THE ARMY WHILE ON TEMPORARY DUTY AT DIFFERENT PLACES WHILE AWAY FROM HIS REGULAR STATION.

A civilian employee of the Army with station at Chicago, Ill., was ordered to proceed to Texas City, Tex., and such other points as the chief quartermaster, Second Division, might designate, for temporary duty. He was at Texas City from February 27 to March 15, 1913, when he proceeded under orders to Galveston, Tex., where he remained until April 7, 1913. At the time of this detail the regulations of the War Department authorizing

reimbursement of living expenses to civilian employees on temporary duty away from their regular stations contained no limitation of time for which reimbursement might be made at a rate not to exceed $4.50 per day: Held, reimbursement authorized at a rate not exceeding $4.50 per day for the full period employee was away from his station. Case slightly different in principle from that decided in 20 Comp. Dec., 477.

Decision by Comptroller Downey, February 14, 1914:

U. G. Grummond appealed July 10, 1913, from the action of the Auditor for the War Department in settlement No. 520731, dated June 25, 1913. He claimed reimbursement of living expenses, which included lodging, subsistence, baths, tips, laundry ($4.05), and baggage transfers ($1) at Texas City and Galveston, Tex., while on temporary duty at Galveston. The period claimed for is from the afternoon of March 27, 1913, to after dinner of April 7, 1913, and the amount claimed is $43.15. Claimant was a civilian clerk in the Quartermaster's Department of the Army. Receipt for lodging is submitted, and as to the other items of the claim Clerk Grummond certifies that the statement of expense is taken from memorandum data kept by him. He states further that it was not practicable to obtain receipts for other items. The tips in no case exceed 15 cents per meal and the baths do not exceed 25 cents per day. The cost of meals and lodgings, including baths, tips, and laundry work, does not in any instance exceed $4.50 per day.

The auditor disallowed the claim because

"The order, dated Chicago, Ill., February 25, 1913, detailing claimant to Texas City, Tex., directed him to report to chief quartermaster, Second Division, and such other points as he may designate, for temporary duty. On March 8, 1913, claimant was transferred to Galveston, Tex. He has been reimbursed the regulation amount for his living expenses for the first 30 days while on duty with the Army in Texas under his orders, and now claims a balance due to make 30 days after his transfer to Galveston. His detail is held to be with. the Army in Texas, even though transferred from one city to another, and under the regulations he is only entitled to reimbursement for the first 30 days while on temporary duty. Having been paid for the 30 days, no additional amount can be allowed, and said claim is therefore disallowed."

The facts as gleaned from the papers of the case are as follows:

By Special Orders, No. 7, Headquarters Central Department, Chicago, Ill., February 25, 1913, claimant, then on duty at said headquarters, was directed to "proceed to Texas City, Tex., and report to the chief quartermaster, Second Division, and such other points as he may designate, for temporary duty, on completion of which they (he) will return to these headquarters in this city." Claimant arrived at Texas City on the afternoon of February 27, 1913.

Under authority contained in letter of chief quartermaster, Second Division, dated March 8, 1913, claimant was directed to "proceed at

once to Galveston, Tex., and report there to the depot quartermaster for temporary duty." Claimant appears to have arrived at Galveston on the afternoon of March 15, and he remained there until after dinner on April 7, 1913. He has been reimbursed his living expenses from February 27 (supper) to March 27 (supper), 1913, and he makes claim for this additional reimbursement accordingly.

Paragraph 744, Army Regulations, 1910, as amended and republished in full November 14, 1912 (C. A. R., No. 16), so far as material, provides:

"Reimbursement of actual expenses when traveling under competent orders will be allowed, under the following heads, to civilians in the employ of any branch of the military service,

* * *

*, viz:

"4. Cost of meals, including tips, not to exceed $4.50 a day while en route when meals are not included in the transportation fare paid, * * * tips for meals not to exceed 15 cents each.

"5. Cost of meals, and lodgings including baths, tips, and laundry work, not to exceed $4.50 a day while on duty at places designated in the orders for the performance of temporary duty."

Said amended and republished regulation was in force until May 23, 1913 (see C. A. R., No. 28), when it was changed so as to provide that

"Reimbursement of such expenses (meaning not to exceed $1.50 a day while on duty at places designated in the orders for the performance of temporary duty) will be limited to $1 a day after the first 30 days at any one place."

After the Regulations of 1910 were published and before the change of November 14, 1912, was made, the Secretary of War on December 30, 1910, approved a recommendation of the Quartermaster General of the Army to the effect that the allowances provided for in paragraph 744 of the Regulations be limited to 30 days for those civilian employees of the Quartermaster's Department who might thereafter be assigned to temporary duty at a place other than their permanent stations, whatever the length of time such temporary service might be. On March 28, 1911, the Secretary of War approved the recommendation of the Quartermaster General that the same rule be extended and applied to civilian employees of other departments of the Military Establishment who receive per diem and traveling expenses while on temporary duty away from their regular stations, and April 5, 1911, announcement to the Army generally was made accordingly. (For reference to order see 18 Comp. Dec., 358.)

These amendments to the Regulations (held to be such by the Court of Claims in the decision of February 9, 1914, Maxwell v. United States, No. 31246) were not carried into paragraph 744 as