The commissioner's certificate is in the nature of a transcript, for which the fee bill provides a fee of 60 cents. A fee of 30 cents is provided for a copy of complaint with certificate, and a fee of 40 cents for copy of warrant of arrest with certificate. No separate fee is provided for copy of commitment, the copy being covered by the fee of $1 for issuing the writ and making copy of same. The commissioner is entitled to $1.30 of the amount disallowed in this case, which is accordingly allowed on revision. Item 2. Charges for bringing defendants from jail, $8.50. Disallowance by the auditor is affirmed. No writs were necessary. (See Gilbert case, 23 Ct. Cls., 218.) Item 3. Charges in excess of 75 cents each for issuing search warrants, $5.25. Conceded by commissioner. Disallowance of auditor affirmed. (19 Comp. Dec., 823.) DECEMBER QUARTER, 1913. Item 1. Charges for issuing warrants to bring defendants from jail, $12. No writs were necessary. Auditor's disallowance is sustained. (See Gilbert case, 23 Ct. Cl., 218.) Item 2. Case against Louis Martin, page 16. Charges for copy of complaint, copy of warrant, copy of commitment, and for certificate of commissioner to Secretary of State, $3.35. Upon revision, $1.30 is now allowed. See cases cited in Isaacs case above, Item 3. Charge for making transcripts in removal proceedings3 at 60 cents $1.80. Disallowed by the auditor; now allowed upon revision, as the transcripts were necessary for use of the district courts in other jurisdictions, $1.80. (20 Comp. Dec., 24.) Item 4. Charge in excess of 75 cents each for search warrants. Auditor's action in disallowing 50 cents is affirmed. (See 19 Comp. Dec., 823.) LIABILITY INSURANCE AS A PART OF THE "ACTUAL NECESSARY COST" OF EXTRA WORK. Cost of liability insurance can not be classed or paid for as a part of the "actual necessary cost" of extra work under a contract which defines "actual necessary cost' as including charges for "labor, materials, and supplies," but not charges for * or other general expenses." 66 * office 14 Comp. Dec., 297, and 46 C. Cls., 318, distinguished from this case. Comptroller Downey to the Secretary of the Interior, March 23, 1914: I am in receipt of your letter of the 18th instant requesting my decision of a question therein stated as follows: "Inclosed herewith is a copy of contract claim in favor of Bartlett & Kling for work performed during January, 1914, under their contract, dated May 24, 1912, for construction of Dam No. 3, North Platte project, Nebr., with copy of the specifications of the contract, extra-work order No. 8, dated December 26, 1912, and itemized statement of the extra work performed under this order. "The amount of the claim is $4,261.26, of which $3,300.99 is claimed for extra work performed under extra-work order No. 8. The charges for this extra work may be divided as follows: For labor and liability insurance thereon_. Coal Oils, packing, and machine supplies.. Use of machinery (installed on the ground) for 24 days.. Profit $942. 91 994. 87 24. 48 773.50 134.67 430.56 3, 300.99 "Paragraph 14 of the specifications provides as follows: "Extra work or material: In connection with the work covered by this contract, the engineer may order work or material not covered by the specifications. Such work or material will be classed as extra work and will be ordered in writing. No extra work will be paid for unless ordered in writing. Extra work shall be charged for at actual necessary cost, as determined by the engineer, plus 15 per cent for profit, superintendence, and general expenses. The actual necessary cost will include expenditures for materials, labor, and supplies furnished by the contractor, and a reasonable allowance for the use of shop equipment where required, but will not include any allowance for office expenses, general superintendence, or other general expenses. At the end of each month the contractor shall present in writing his claims for extra work and material and, when requested by the engineer, shall furnish itemized statements of the cost, and shall permit examination of accounts, bills, and vouchers relating thereto." "Your advance decision is requested whether the claim for extra work performed under order No. 8, amounting to $3,300.99, in whole or in part, can be allowed under the above provisions of the contract." You do not state what item or items of the account presented have occasioned your doubts as to the propriety of paying the account as a whole, but, from a verbal communication from an officer of the Reclamation Service, I gather that the main question is whether the cost of liability insurance ($44.90) included in the account is properly to be classed as a part of the "actual necessary cost" of doing the extra work in question. The work on account of which the claim under consideration was presented was extra work, and was duly ordered by a proper officer of the Reclamation Service (Order No. 8, dated Dec. 26, 1913). The account therefor, in itemized and detailed form, is certified by the contractor as correct and just, and by the engineer in charge thereof it is certified— 42853°-VOL 20-14- 42 "That the above account of cost of labor and materials is correct and that the said extra work was performed in accordance with my instructions of December 26, 1913, and that the same have been satisfactorily performed." In a decision of this office dated November 14, 1907 (14 Comp. Dec., 297), in construing a contract providing that for extra work like that here in question the contractor would be paid "actual necessary cost, as determined by the engineer, plus 15 per cent," it was held that cost of liability insurance incurred by the contractor could not be classed, included, or allowed as a part of "the actual necessary cost" of the extra work duly ordered and performed. Later the Court of Claims (Lovell v. United States, 46 Ct. Cl., 318), allowed the contractor's claim on such account, holding that the cost of liability insurance was a proper charge under said contract. If the terms of the Lovell contract there considered were identical with those here in question, the decision referred to would be ample authority for the allowance of the item now in dispute, but paragraph 14 of the contract here in question defines what shall and what shall not be considered as parts of the "actual necessary cost" of doing extra work, whereas the Lovell contract contained no such definitions. * * 66 Under the contract here in question "expenditures (by the contractor) for materials, labor, and supplies * and a reasonable allowance for the use of shop equipment where required”, but not expenditures on account of “office expenses, general superintendence or other general expenses" were, and are, to be classed as actual necessary cost." Whether or not, then, the cost of liability insurance is to be classed as a part of the "actual necessary cost" of doing the extra work depends upon whether such cost is to be rated as an "expenditure for materials, labor, and supplies" or as an "office or other general expense." If the former, the charge must be allowed as proper; if the latter, it can not be allowed. * * * I do not think the item of $44.90, charged as cost of liability insurance, can properly be allowed as a part of the labor cost, but am constrained to hold that it must be classed as one of the "other general expenses" which in express terms are excluded from the "actual necessary cost" of the extra work. This item should therefore be eliminated by you from the account presented before payment is made. After said item is eliminated and the 15 per cent correspondingly reduced, if the account is otherwise correct in itemization and amount, the same may properly be paid as rendered. FEES OF CLERK, UNITED STATES DISTRICT COURT, FOR MAKING TRANSCRIPT ON APPEAL. A clerk of a United States district court who, in good faith and in accordance with a rule of court in force at the time, makes a typewritten transcript of the record to be sent up on appeal, in lieu of the printed copies thereof provided for by section 2 of the act of February 13, 1911 (36 Stat., 901), is entitled to the statutory fees for his services in making the transcript, notwithstanding a later decision of the United States Supreme Court to the effect that the statute substitutes printed copies for the typewritten transcript formerly made. Decision by Comptroller Downey, March 23, 1914: The Attorney General applied February 26, 1914, for a revision of the action of the Auditor for the State and Other Departments in allowing by settlement No. 25149, dated January 30, 1914, an item in an account of F. W. Oakley, clerk of the United States District Court for the Western District of Wisconsin, which item had been deducted on the administrative examination of the account, as follows: "Item 4, page 14, case 18-B; charge for transcript of record on appeal. Fees allowed for certificate (2 folios) and seal. (18 Comp. Dec., 333; Rainey Estate v. Grace, decided by the Supreme Court on Jan. 5, 1914, $50.80." In support of his allowance of the item the auditor has cited Comptroller's decision in Letcher's case, January 15, 1914, the rule of court under which the transcript was made, 205 Fed. Rep., 937, and the decision in Rainey Estate v. Grace cited by the Attorney General. The transcript for which this charge is made is a typewritten transcript made and certified by the clerk and sent to the appellate court in lieu of the printed records prescribed by the act of February 13, 1911 (36 Stat., 901). The rule of court under which this transcript was made provides: "In each case where the clerk of the court is required by a praecipe or stipulation which shall expressly waive the provisions of the act of February 13, 1911, above specified, to make a typewritten transcript of record, he shall be allowed a fee of 15 cents a folio for the transcript so made and certified." In Letcher's case, cited by the auditor, this office had under consideration a rule of court to the effect that a plaintiff in error or appellant might waive the privilege of printing the record accorded him by the act of February 13, 1911, and might file in the appellate court in lieu of such printed record a typewritten or manuscript transcript, the same to be printed under the supervision of the clerk of the appellate court. Upon a showing that this method of procedure was less expensive than the procedure contemplated by the statute, and that the United States attorney representing the Government elected to send up a typewritten transcript under the rule, the clerk's fees for making the transcript were allowed by this office. My attention is now called to the court's opinion in the recent case of Rainey Estate v. Grace, supra, which was not before me when Letcher's case was decided, and I am now called upon to review my decision in the light of said opinion. The pertinent facts in Rainey's case, which was an admiralty case, are as follows: The appeal was taken from the District Court of the United States for the Western District of Washington to the Circuit Court of Appeals for the Ninth Circuit. Copies of the apostles were printed and indexed under a rule of the district court adopted in pursuance of the act of February 13, 1911. One of the printed copies, certified under seal by the clerk of the district court, was filed by appellant in the circuit court of appeals, which court was moved to hear the case without payment by appellant of the fees of the clerk of the circuit court of appeals provided by rule of that court for indexing the record and distributing copies. On this statement of fact the circuit court of appeals certified questions to the United States Supreme Court as follows: (1) Whether the circuit court of appeals was authorized to hear the cause on such copies and to dispense with the requirement of the payment of fees to its clerk by its fee bill prescribed by the Supreme Court under authority of an act of Congress which provides a fee for "Preparing the record for the printer, indexing the same, supervising the printing and distributing the copies, for each printed page of the record and index, 25 cents." (2) Whether the first section of the act of February 13, 1911, set aside by implication the above provision of the fee bill. Each of these questions was answered in the affirmative, the court holding that clear inconsistency exists between the statute and this provision of the fee bill prescribed under authority of a prior statute. After reviewing the statutes and rules of court and referring to the evident purpose of the act of 1911 to diminish the expense of proceedings on appeal, the court says: "This was to be accomplished by dispensing with a written or typewritten transcript of the record of the lower court and substituting therefor a certified copy of the printed record, other copies of which should be available for use in the further consideration of the case in the appellate courts. With this end in view the act provides that the appellant or plaintiff in error shall cause to be printed under such rules as the lower court (the Circuit or District Court) shall prescribe, and shall file in the office of the clerk of the Circuit Court of Appeals, 25 printed transcripts of the record." |