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under should not have a crook in excess of 3 inches. By later stipulations it was agreed that piling having a crook greater than 3 inches but less than 6 inches would be accepted at a price of 28 cents per linear foot.
The first delivery was made August 26, 1911. It consisted of 265 piles invoiced at 34 cents, and 285 at 28 cents per foot, for 22,820 and 24,440 feet, respectively, and less $817.71 damages for delay, $18.06 cost of needless inspection, and $1,460.20 as 10 per cent retained percentage-$2,295.97 in all, was paid for as invoiced, $14,602, or $12,306.03 net.
October 21, 1911, the contractor having made no further deliveries, 38 piles, 3,230 1-foot, were bought at 42 cents per foot. These cost $258.40 in excess of what like piles would have cost under the contract of May 1, 1911. They were delivered October 21, 1911, 122 days after July 1, 1911.
This left a balance of 412 piles due for delivery on the first 1,000 piles covered by the contract.
November 23, 1911, 534 piles were delivered, 82 of which (7,055 feet) were invoiced at 34 cents, 377 (32,425 feet) at 28 cents, and the balance, 75 (6,395 feet), was rejected as not complying with the specifications. These last, under special agreement, were later accepted and used, the agreed price therefor being 18 cents per foot ($1.161.10).
) This lot, therefore, at contract or specially agreed prices, was $12,628.80—i. e., 7,055 feet at 34 cents, $2,398.70; 32,425 feet at 28 cents, $9,079; and 6,395 feet at 18 cents, $1,151.10_$12,628.80 in all.
Of this lot, 82 piles, 7,055 feet at 34 cents, $2,398.70, and 330 piles, 28,150 feet at 28 cents, $7,882, were required to complete the first 1,000 piles, and delivery thereof was due July 1, 1911. Delivery was made November 23, 1911.
The balance, 47 piles, 4,275 feet, at 28 cents, $1,197, and 75 piles, 6,395 feet at 18 cents, $1,151.10, applied on the second 1,000 piles, and was not therefore due for delivery until September 1, 1911.
The third and last shipment made was made on a vessel chartered by the commission under an agreement that 12 cents per foot freight would be paid the commission by the contractor. February 12, 1912, 608 piles were delivered—a delay of 165 days beyond the agreed date for such delivery. This lot consisted of 232 piles, 19,705 feet, invoiced at 34 cents, $6,699.70; 286 piles, 24,365 feet at 28 cents, $6,822.20; 32 piles, 2,390 feet, at the specially agreed price of 18 cents, $430.20, and 58 piles, 4,920 feet, at the special price of 24 cents, $1,180.80.
No further deliveries having been made on June 17, 1912, 69 piles, 5,895 feet, were bought without extra cost (at 34 cents per foot), and the contractor charged with damages for delay in the delivery. Thereafter the contractor's right to make further deliveries was terminated, and no further deliveries or purchases on account were made.
It thus appears that, all told, the contractor delivered piles, which at contract or specially agreed prices were worth a total of $42,367.70, on which one payment, $12,306.03, was made by the commission, leaving $30,057.67 still due but for the accrued freight, damages, and other charges.
The commission found that delivery of the first 1,000 piles was delayed by abnormal weather conditions for a period of 30 days, and that the contract date for such delivery should therefore be extended for that time, i. e., from July 1 to 31, 1911. It likewise found that the delivery of the second 1,000 piles was delayed for a period of 40 days, and that the contract date for such delivery should be moved forward for a like time, i. e., from September 1 to October 11, 1911. All delay in the delivery, after July 31, 1911, of the first 1,000 piles, and after October 11, 1911, in the delivery of the second 1,000, was due to causes for which the contractor was responsible, and no part of such delays, the commission found and decided, was due to any of the causes entitling the contractor to a remission of damages or extension of time.
The balance due under this contract, less liquidated damages at the agreed rate for all delays for which the contractor, as found by the commission, was responsible, amounting all told to $4,141.52— freight charges ($6,014.60), excess cost ($258.40), and $35.63, cost of needless inspection--the commission offered to pay upon the execution of a release of all claims growing out of said contract, but this the contractor declined to give. The auditor made settlement on the same basis, raising charges against the contractor on the account stated aggregating $10,45210, and allowed a balance accordingly of $19,607.57.
The contractor has contended all along, and still contends, that most, if not all, the delays in deliveries were due to abnormal weather conditions existing in the Southern States during the summer and early fall of 1911, and that but for such conditions deliveries would have been made approximately as agreed instead of months afterwards. This contention is not sustained by the facts, however. The commission, with full reports of the Weather Bureau before it as to weather conditions in the region from whence the piles were to be procured, and after what appears to have been a very careful investigation, has found that abnormal weather conditions were responsible for parts of the delays that occurred, and settlement was made on the basis of this finding. Under the terms of this contract, the contractor was responsible for all delays which,“ in the judgment of the commission,” were not due to acts of the commission itself, strikes, acts of God, or public enemies. The “judgment of the commission " as to the extent of delays caused by abnormal weather in this case I find no occasion for questioning, and I see no reason for allowing additional time on such account. Damages were computed in strict accordance with the contract terms and only for those delays for which the contractor was responsible, and the settlement of the auditor charged the contractor with damages for such delays only.
Another contention is that it was practically impossible to obtain and supply the piles called for by this contract, i. e., that 2,000 piles
i 85 feet long and of required sizes simply could not be found. The answer to this contention is that the contract was fairly made. No one compelled the contractor to enter into this contract, and however difficult of performance his undertaking was, that was a matter that he alone was to consider. If the contract was one well-nigh impossible of performance, such impossibility was one not arising after the contract was made. (Phoenix Bridge Co. v. United States, 211 U. S., 188; Jones v. United States, 96 U. S., 24; Booth v. Mill Co., 60 N. Y., 487; Jacksonville, etc., R. R. Co. v. Hooper, 160 U. S., 514, 528.)
I am not unmindful of the quite evident fact that this contractor has sustained unusual losses on account of his contract relations with the Government here noticed, but from all the facts appearing I can not say that any charge has been raised against him that was not properly raised under the contract concerned. The enormity of the damages charged against him is explained by the long delays, and for these I think it clear the contractor alone was responsible.
The auditor's settlement was in accordance with the facts of the case and must be affirmed accordingly.
Payment to a person who holds the position of disbursing clerk or deputy
disbursing clerk in the Treasury Department, with compensation fixed by law, of extra compensation for disbursing, under appointment or designation by the President, appropriations of the Tariff Board, is prohibited by section 1764, Revised Statutes; the duty of disbursing these appropriations being one which would have devolved upon the disbursing clerk
of the executive office but for this special designation or appointment. Both sections 1764 and 1765, Revised Statutes, prohibit payment of this extra
compensation unless the employment as special disbursing agent is a separate place with compensation fixed by law or regulation. It is not fixed by law, and an oral understanding with the Tariff Board that a certain compensation would be paid is not equivalent to a regulation fixing compensation for the place of special disbursing agent.
Decision by Comptroller Downey, March 17, 1914:
W. S. Richards, former disbursing agent of the Tariff Board, applied, February 26, 1914, for a revision of the action of the Auditor for the State and other Departments in disallowing, by settlement No. 5660, dated October 20, 1913, an item of $1,143.62, being the aggregate amount paid to himself as disbursing agent of the Tariff Board for the period from November 26, 1909, to August 24, 1912, inclusive.
Section 2 of the tariff act of August 5, 1909 (36 Stat., 83), contains the following provision:
“To secure information to assist the President in the discharge of the duties imposed upon him by this section, and the officers of the Government in the administration of the customs laws, the President is hereby authorized to employ such persons as may be required."
In accordance with this general authorization, Congress has from time to time made appropriation “to enable the President to secure information and to assist the officers of the Government in the administration of the customs laws," as provided by the section above quoted. (36 Stat., 119, 703, 1363.)
The President, in pursuance of the authority conferred by these laws, issued the following appointment: « Mr. W. S. RICHARDS,
“Disbursing Clerk, Treasury Department.
Sir: You are hereby appointed as my agent to disburse any moneys appropriated by Congress to secure information to assist the President in the discharge of the duties imposed upon him by section 2 of the tariff act, approved August 5, 1909. _(Public No. 5.) Your official designation will be disbursing agent, Tariff Board. You will perform your duties under the direction of the chairman of the Tariff Board appointed by me under authority of the aforesaid act.
“You will give bond for the proper performance of your duties under this appointment in such form and with such security as the Secretary of the Treasury shall determine.
“(Signed) WM. H. TAFT. “THE WHITE HOUSE,
“ November 26, 1909." This appointment was within the President's discretionary power under the statutes, notwithstanding that the Tariff Board was located in Washington, where all disbursements were made, and Congress had provided specifically for a disbursing offcer for the executive office, whose duty it would otherwise have been to disburse these appropriations.
It does not follow, however, that Mr. Richards is entitled to receive compensation for services rendered under this appointment. During the whole of the period covered by his services to the board Mr. Richards held a position either as disbursing clerk or as deputy disbursing clerk of the Treasury Department, with compensation fixed by law at $2,500 and $2,750 per annum, respectively.
Sections 1763, 1764, and 1765, Revised Statutes, provide:
“1763. No person who holds an office, the salary or annual compensation attached to which amounts to the sum of $2,500, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law.
“ 1764. No allowance or compensation shall be made to any officer or clerk by reason of the discharge of duties which belong to any officer or clerk in the same or any other department, and no allowance or compensation shall be made for any extra services whatever which any officer or clerk may be required to perform, unless expressly authorized by law.
“ 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.
Mr. Richards's appointment as agent to disburse these appropriations was an employment and not an appointment to office. Therefore neither the prohibition in 1763, supra, nor the restriction found in section 2 of the act of July 31, 1894 (28 Stat., 205), applies to this case.
It has been held that section 1764 relates to allowances or compensation to officers or clerks in an executive department for the discharge of duties belonging to other officers or clerks in the same or another department. (Landram v. United States, 16 Ct. Cl., 74, 83). Mr. Richards held positions in the Treasury Department. The section prohibits the payment to him of compensation for discharging the duties of another officer or clerk in his own or any other department.
The executive office is not an “executive department” within the narrow sense of the term, but the President is the head of the executive service, and the clear intent and purpose of the section is that a departmental officer or clerk shall not receive compensation for discharging duties belonging to another officer or clerk in the executive service at Washington, whose duties and compensation are specifically defined by law. (Landram's case, supra.) The disbursement of these appropriations is within the scope of the duties of the disbursing clerk of the executive office, and would have devolved upon him but for the special appointment or designation.
Both sections 1764 and 1765, Revised Statutes, prohibit the payment to Mr. Richards of any allowance or compensation for an extra service added to the duties of his position as disbursing clerk or deputy disbursing clerk in the Treasury Department. (United