discharged May 8, 1906, per paragraph 7, War Department Special Orders No. 93 of April 18, 1906. Said paragraph is in words and figures as follows:

"7.-Corporal Harry L. Wandschneider, Company L, Tenth Infantry, Camp McKinley, Honolulu, Hawaii, will be discharged from the Army by the commanding officer of that post, under the provisions of General Orders No. 4, War Department, January 8, 1906.”

Said Orders No. 4 contain regulations which have for a foundation section 4, act of June 16, 1890 (26 Stat., 158), under which this soldier, having served two years, was permitted to purchase his discharge from the Army for the sum of $100 and with the understanding that he should not receive any travel allowances from the United States on such discharge.

Appellant states that his discharge paper under the heading "Military record" shows:

"Marksmanship-first class, 1904. "Sharpshooter, 1905."

He has transmitted "Form No. 674," headed "Individual record of Pvt. Harry L. Wandschneider, Company L, Tenth Regiment of Infantry," and signed by John B. Schoeffel, captain Tenth Infantry, commanding Company L, who states that it is "a correct report.' Said report (Form No. 674) contains the score and percentage made by this soldier in the contest of 1905 in "Marksman's course, "Sharpshooter's course," "Expert rifleman's test," and "Estimating distance," and shows "Final qualification as sharpshooter."

In view of the War Department's action in the parallel case of C. A. Malone of Twenty-eighth United States Infantry, the above report in the case of Wandschneider doubtless would be considered by the War Department as sufficient evidence of his qualification as a sharpshooter during the season of 1905 (see 41 MS. Comp. Dec., 241), but a decision to the effect that Wandschneider qualified as marksman or qualified as sharpshooter would be of no pecuniary benefit to him for reasons hereinafter stated.

The act of March 2, 1903 (32 Stat., 929), provides:

"That expert riflemen, hereafter qualifying as such, shall receive one dollar a month in addition to their pay."

Appellant never qualified as an expert rifleman, and in cases of those who had qualified as sharpshooters or as marksmen there was no law authorizing the payment of additional pay until June 12, 1906. The act of June 12, 1906 (34 Stat., 241), provides:

"That hereafter enlisted men qualifying as expert riflemen shall receive in addition to their pay three dollars per month; those qualifying as sharpshooters, two dollars per month, and those qualifying as marksmen, one dollar per month, under such regulation as the Secretary of War may prescribe."

The action of the auditor in disallowing the claim in this case is affirmed, not for the reason stated by the auditor, but for the reason that the soldier's service in the Army ended prior to June 12, 1906, and there is no law authorizing payment of additional pay as sharpshooter or as marksman for any time prior to June 12, 1906. (See 18 Comp. Dec., 1024.)

HIRE OF HYDRAULIC DREDGING OUTFIT, OF GUARANTEED CAPACITY, AT A PRICE PER HOUR.

On facts stated, held, (1) that the contract was for the furnishing and operation of a dredge of a stated capacity in a stated class of materials at a stated price per hour; (2) that the dredge furnished is shown to have had the required capacity; and (3) that payment at contract price per hour is authorized.

Comptroller Downey to Maj. W. B. Ladue, Corps of Engineers, United States Army, June 3, 1914.

By reference of the Chief of Engineers, United States Army, I am in receipt of your letter of May 23, 1914, requesting my decision whether you are authorized to pay a voucher therewith submitted in favor of the Hillsboro Dredging Co. for $4,605.85, a balance thought to be due said company for hire of dredging outfit, contract of June 19, 1913.

By the terms of said contract the Hillsboro Dredging Co., in conformity with certain specifications, etc., thereunto attached, undertook to furnish a complete dredging outfit, consisting of the hydraulic dredge Gene Hester, manned and ready for work, with necessary pipe lines, pontoons, etc., and therewith, under the directions of the engineer in charge to do certain dredging work in the Indian River, Fla., the "work to be done" being more particularly described in paragraph 20 of the specifications, as follows:

"The work to be done under these specifications consists in furnishing a satisfactory hydraulic dredging plant, including all necessary vessels and necessary equipment such as scows, towboat, dispatch boat, rowboats, pipe line, pontoons, anchors, etc., and with this plant to excavate and remove all the materials contemplated within the limits specified in paragraph 18 herewith "-i. e., certain designated sections, Indian River.

Paragraph 28 of the same specifications was as follows:

"28. The material to be removed is believed to be mud, sand, and shell, all in unknown proportions. Bidders are expected to examine the work and decide for themselves as to the character of the material and make their bids accordingly, as the United States does not guarantee the accuracy of the above description."

Paragraph 29 required that bidders should state the character and capacity of the plant proposed to be furnished, in compliance with

which the successful bidder described the Gene Hester as "having a capacity of 55 cubic yards per hour in the material specified in paragraph 28," and subject to this warranty on the part of the contractor, the contract fixed a rate of $11.55 per working hour for the outfit complete, which sum the Government agreed to pay for all time during which the outfit was actually employed in dredging work or in necessary moves from one location to another, with the proviso (par. 33) that

"If the capacity of the dredge falls more than 10 per cent below that stated in the accepted proposal, the rate of payment per working hour will be reduced in the ratio that the actual work performed bears to the contractor's statement (55 cubic yards) in the proposal."

The further facts giving rise to the question now submitted are stated somewhat argumentatively by the officer in charge as follows: "5. The dredge reported to the representative of the United States at Goat Creek on December 30, 1913, and began work on the Sewalls Point Cut above St. Lucie Inlet on January 7, 1914. Thereafter work was in progress until it terminated on April 17, 1914, on account of exhaustion of available funds. During this period dredging was done in 8 sections. The total number of working hours to be paid for is 1,782, of which 1,376 hours and 25 minutes was actual pumping and 351 hours and 35 minutes was used in towing, preparing, and other miscellaneous work classed as working time under paragraph 33 of the specifications.

"6. The inspector on the work kept a close count of the number of hours spent on the dredging and the amount of material removed. Upon completion of the work it was found that in 1,376 hours and 25 minutes of actual pumping 62,373 cubic yards of material had been removed, making an average of 45.32 cubic yards per hour. This is 82.4 per cent of the rated capacity of 55 yards per hour stated. in the bid, and if the pro rata deduction fixed by paragraph 33 is to be applied on the basis of this average output to the entire time the dredge was in use under the contract, the rate per hour would be reduced to $9.5172, and the total earnings under the contract would be $16,445.72.

"7. This settlement would probably be correct if the material actually removed by the dredge during the contract period had been as described in paragraph 28, mud, sand, and shell in unknown proportions. But in the actual work the dredge encountered and was required to remove not only mud, sand, and shell, but in addition very hard sand and loose rock, with mangrove and saw palmetto roots at various intervals. The hard sand, and to an even greater extent the rock, mangrove, and palmetto roots, necessarily delayed the work and reduced the output of the dredge. Paragraph 28, after describing the material that was expected to be found, cautioned bidders that they were expected to examine the work and decide for themselves as to the character of the material and make their bids accordingly, as the United States does not guarantee the accuracy of the above description.' But, I take it, that this provision should be interpreted simply as requiring that if other

material that could be dredged was encountered the dredge must remove it even though it was not covered by the description given, and this was done. But the rated capacity of the dredge as stated in the bid is by the terms of the bidding form the capacity in the material specified in paragraph 28.' It appears to me that only in case of failure to make its rated capacity in the material described in paragraph 28 should the deduction prescribed by paragraph 33 be made. In other and more difficult material it would be quite probable that a dredge of considerably greater size might have failed to give the output named in the bid. Indeed, if put to digging rock, the output of the dredge might well have been reduced to practically nothing, even though the dredge might be a thoroughly efficient and acceptable machine for dredging material to which it was suited.

"8. An examination of the inspector's records shows that in 4 of the 8 sections into which the work was divided, covering approximately 600 hours of actual dredging, the output of the dredge averaged more than the guaranteed capacity of 55 yards per hour. In the other four sections, aggregating 776.42 hours of dredging, the output averaged less than 90 per cent of the guaranteed capacity. In the sections in which the guaranteed capacity was exceeded the material was good average material of the general nature described in paragraph 28; in the sections in which the output was less than 90 per cent of the guaranteed capacity the work was more or less interfered with by hard sand, loose rock, and mangrove and palmetto roots. In one of the 4 sections in which the rated capacity was not attained hard sand free from rock or roots was found; and in this section the inspector is of the opinion that the dredge should have made her rated capacity. This was the first section dredged and it is possible that the crew and the machine had not reached their full efficiency. In the other sections it is believed that the failure to make the rated capacity was due to the presence of loose rock and obstructing roots or other material not contemplated by paragraph 28 of the specifications, and that the output of the dredge in these sections was all that could reasonably be expected of a dredge of this type and size in material of the kind encountered.

"9. Under the circumstances, it appears to me that the performance of the dredge in those sections of the work where she was not delayed by material other than that specified in paragraph 28 should be taken as the measure of her capacity, and that the failure to make the required average output in the other sections where the work was hampered by obstructions and other material not contemplated by paragraph 28 does not constitute a failure in capacity such as would justify reductions in the contract price under paragraph 33. I have therefore prepared a voucher proposing payment to the contractor at the full contract rate of $11.55 per hour for the entire 1,728 hours that the dredge was in the service of the United States, making a total of $19,958.40, less amount heretofore paid the contractor, and submit this voucher with request for advance decision by the Comptroller as to whether or not I am authorized to pay the same.

10. If the several sections are considered separately and deductions made only for the time of actual dredging in those sections in which the output fell below the rated capacity, giving full pay for the time dredging in other sections and the time in towing and pre

paring between sections, the total earned by the contractor would be $17,513.10. If deductions are made for the first section at Sewalls Point Cut only, on the ground that in this section the failure to make the rated capacity was due to causes within the contractor's control, and not to the nature of the material, then the total earned becomes $19,297.64. I do not consider that either of these settlements is warranted by the terms of the contract, which does not recognize any division into sections. The division into sections was wholly artificial, and another division might have been made which would change the result. If, however, the settlement proposed by the voucher submitted herewith is not authorized, then I request decision as to whether either of the alternate settlements proposed in this paragraph is permissible, and, if not, the basis on which final settlement should be made."

The Government agreed to pay a price of $11.55 per working hour for a plant and its operation that would, under normal conditions, perform at a specified rate in a stated class of material. It was not a contract to dredge a stated quantity of material per hour or to dredge a stated quantity for a stated price or at a given price for any stated unit of material. The stipulation as to the yardage per hour was simply a guaranty as to the capacity of the plant per hour in the stated kind of material, and for the use and operation of such a plant the Government agreed to pay the stated price per hour. A hydraulic dredging outfit, in the very nature of things, would be expected to attain a maximum efficiency only when working on materials of a kind that it was designed to handle, and the contractor's statement of the capacity of the plant hired was to be so interpreted.

I think all the facts show that the plant hired was of the capacity warranted by the contractor. Such fact was demonstrated on every occasion that the contractor was permitted to operate on the class of materials upon which the guaranty was predicated, and the warranty as to capacity did not extend to other materials.

The voucher submitted may properly be paid, if correct in itemization and amount.

CONSTRUCTIVE SERVICE CREDIT TO NAVAL PAY CLERK ON REAPPOINTMENT.

Whether a naval pay clerk on reappointment is appointed from "civil life" within the meaning of section 13 of the act of March 3, 1899 (30 Stat., 1007), and entitled thereunder to a credit of five years' constructive service, depends upon whether in the interim between appointments there was an abandonment of intent of continuance in the naval service, the mere occurrence of the interim in itself not constituting the reappointment an appointment from "civil life."

Decision by Comptroller Downey, June 6, 1914.

The Auditor for the Navy Department, May 14, 1914, decides that Henry Guilmette, while a pay clerk. United States Navy, subse