in so far as the same may arise from delays for which the United States is responsible, as determined in each of these particulars by the officer in charge or higher authority, shall be charged to the contractor and may be deducted from any money due or to become due to said contractor from the United States; provided that where additional time has been granted the United States shall also have the right to cause the remaining part of the contract, or any portion thereof, to be taken from the contractor whenever in the opinion of the officer in charge reasonable and satisfactory progress is not being made, and to secure completion at the expense of the contractor, including charges as above on account of delays."

Deliveries under neither of said contracts were made at the rate specified therein for such deliveries or completed within the times so computed. It appears that the contractor experienced unexpected difficulties in obtaining necessary supplies of dyestuffs with which properly to dye the cloth which it had undertaken to deliver. Also it had undertaken to supply other contractors, having contracts with the Government for similar materials, with the necessary materials to complete their contracts, and it found its undertakings in this respect far in excess of its actual ability to furnish the needful supplies.

The Government did not formally grant it additional time or make any extension of the contract time, but it permitted the contractor to make deliveries as rapidly as it could and, as the necessities demanded, purchases were made against its account in the open market, at prices largely in excess of the contract rates, of the needful materials to supply its deficiencies.

Liquidated damages at the rate specified in paragraph 32 of the circular to bidders, supra, were deducted for all delays beyond the agreed time for delivery up to the time deliveries were made either by the contractor itself or by those from whom open-market purchases were made against its account, the aggregate of the deductions made on such account being the sum now claimed. No claim is made for the amount withheld from it on account of the excess cost of materials purchased against its account.

The contractor has argued at considerable length that the dye situation created by the war abroad constituted an excusable cause of delay within the meaning of the language of paragraph 32 of the circular to bidders, and has largely based its claim on this ground.

The auditor apparently did not consider that the dye situation. was really responsible for the delays that occurred, but rather that the delays were chargeable to the fact that the contractor had undertaken to make deliveries largely in excess of its manufacturing ca- · pacity, the conditions existing at the time the contracts were made being taken into account.

It is recognized by all that the war situation did in fact create an unexampled scarcity of certain dyestuff materials, and the War Department has experienced great difficulties in obtaining needful supplies of cloth of the kind here in question because of that fact. Whether or not the scarcity of dye materials thus brought about, on the facts in the instant case, would constitute an unforeseeable cause of delay within the meaning of the language of paragraph 32 of the circular to bidders above quoted, I do not find it necessary now to consider or decide.

The plain fact is that under the contracts here involved the circular to bidders in express terms was made a part of the contracts to which attached only as far as the terms thereof "were applicable " to such contracts, and inasmuch as the contracts themselves contained a flat and unqualified provision for actual damages in the event of delays, it would seem to be too clear for argument that the provision of the circular to bidders which purported to provide also for the deduction of liquidated damages at an agreed rate for the same kind of delays or delinquencies was entirely inapplicable to and out of harmony with the terms of the contract itself.

The whole purpose and object of liquidating and agreeing upon damages in advance is to avoid all necessity for calculating the actual damages, and where the actual damages themselves are fully provided for in the contract itself it goes without saying that any provision purporting to liquidate the same is inconsistent with such actual damage provision. On all the facts, therefore, it must be held that the contractor was not legally chargeable with liquidated damages at any rate, and all the deductions made on that account were unauthorized.

I am advised that the Government sustained no actual damage on account of the delays that occurred aside from the excess cost above referred to, which has already been deducted from moneys otherwise due the contractor, as already explained, in the way of inspection costs or otherwise. The contractor is entitled to refund of all sums deducted as liquidated damages, and a certificate of difference in the contractor's favor for $6,338.61 will issue accordingly.

PUBLICATION OF ADVERTISEMENTS.

While the head of an executive department may not lawfully delegate to a subordinate officer, as an officer of the Coast Guard, the power conferred upon heads of departments in section 3828, Revised Statutes, to authorize the publication of advertisements, yet such head of an executive department, after authorizing the publication of a particular advertisement, may lawfully empower a subordinate officer to designate the particular time of publication, within certain limits, and to make certain minor changes in the subject matter of the advertisement, the authority of the subordinate officer in the premises to be clearly defined and limited.

Comptroller Warwick to the Secretary of the Treasury, August 14, 1916:

By your reference of the 10th instant, decision is requested as to whether authority may properly be given by you for the publication of a certain advertisement for recruits in the Coast Guard "subject to change in the first and last lines by the commanding officer, Coast Guard cutter Apache, and publish at such times as that officer may request, in the morning edition of your paper, once a week, between August 15, 1916, and June 30, 1917, inclusive," or whether it will be necessary to issue separate, specific authority for each modification of the advertisement.

The advertisement in question is as follows:

"WANTED: 3 seamen; 1 coal heaver; 1 boy. Enlisted men eligible for promotion to higher ratings when qualified. Pay from $18 for boy to $36 per month for seaman and up to $84 in higher ratings. Subsistence, clothing allowance, medical attention, including hospital treatment, free. Increase of pay for length of service and threequarters pay if disabled or after 30 years' service. Death benefits allowed certain cases. Apply Apache, off Baltimore Yacht Club." Section 3828, Revised Statutes, provides:

"No advertisement, notice, or proposal for any executive department of the Government, or for any bureau thereof, or for any officer therewith connected, shall be published in any newspaper whatever, except in pursuance of a written authority for such publication from the head of such department; and no bill for any such advertisement or publication shall be paid unless there be presented with such bill a copy of such written authority."

The written authority required by this provision must be given by the head of the department; that is to say, the head of the department can not delegate to a subordinate, such as an officer of the Coast Guard, the power to authorize the publication of advertisements. Therefore, the giving of a blanket authority to publish such advertisements, and at such times, as the commanding officer of a Coast Guard vessel may direct would not be a compliance with the law. However, I understand that in the present case the only authority to be vested in the commanding officer is to designate the times of publication within certain fixed limits and to change, as occasion may require, the number and rating of men wanted and the address at which applications are to be made.

An authority of the Secretary permitting the commanding officer to exercise such powers with respect to the publication would, in my opinion, be a compliance with the law, but the letter of authorization should be made to indicate more specifically the changes that are to be made by the commanding officer, as, for example:

"You are hereby authorized to publish the inclosed advertisement, subject to change by the commanding officer of the Coast Cuard cutter Apache as to the number and rating of men wanted and the ad

dress, in the morning edition of your paper once a week, for such periods between August 15, 1916, and June 30, 1917, as may be re quested by said commanding officer.

*

The question submitted is answered accordingly.

PAY FOR STATE HOLIDAYS.

Per diem employees of United States courts, such as bailiffs and criers, are not entitled to pay for State holidays on which they were not on duty.

Decision by Comptroller Warwick, August 14, 1916:

The Attorney General applied July 19, 1916, for a revision of the action of the Auditor for the State and Other Departments in allowing certain items in the accounts of Joseph Howley, United States marshal for the western district of Pennsylvania, in the following settlements, which items are now recommended for recharge as follows:

Settlement No. 6984, dated January 8, 1916: "Item 5.

"W. R. Harris, crier, per diem, Pittsburgh, April 2, 1915 $3.00 "Chas. C. Lacher, bailiff, per diem, Pittsburgh, April

2, 1915

"Jas. P. Walsh, bailiff, per diem, Pittsburgh, April 2,

1915_

3.00

3.00

"Minutes do not show court in session on April 2, 1915. No entry whatever under that date. April 2, 1915, was 'Good Friday, understood to be a legal holiday in the State of Pennsylvania. (See 16 Comp. Dec., 581.)"

Settlement No. 7351, dated June 13, 1916:

"Item 8.

"W. R. Harris, crier, per diem, Pittsburgh, Nov. 2, 1915. $3.00 "Chas. C. Lacher, bailiff, per diem, Pittsburgh, Nov. 2,

1915_.

3.00

"Jas. P. Walsh, bailiff, per diem, Pittsburgh, Nov. 2,
1915_

3.00

"Court minutes do not show court in session on Nov. 2, 1915, there being no entry whatever under that date."

In 16 Comp. Dec., 581, 583, it was said:

"A per diem employee's right to compensation depends usually upon his daily services, and when absent he is ordinarily not entitled to pay unless some statute expressly gives it to him, and this is especially true of bailiffs and criers in the Federal courts when the provisions of section 715, Revised Statutes, under which they are appointed, are considered, which section prohibits payment of per diems to them except for 'actual attendance.'

999

April 2, 1915, was Good Friday, and November 2, 1915, was election day in the State of Pennsylvania. Both of these days are State holidays in this State. There is, however, no Federal statute which authorizes pay to these per diem employees on these State holidays

unless they are in actual attendance upon the court. The auditor's action in allowing pay to them for the days in question was erroneous and the amounts indicated will now be disallowed.

PAYMENT OF WAR CLAIM.

Where, by the act of March 4, 1915, relative to Civil War claims, an amount was appropriated to be paid to the trustee of an unincorporated religious association and the trustee died without having received such amount, payment thereof may lawfully be made to a receiver appointed by a competent court for such association, although no longer in existence, provided the order of appointment is in no way in conflict with the terms of that act. Decision by Comptroller Warwick, August 15, 1916:

W. A. Dees, receiver of the Union Baptist Association of North Carolina, applied July 28, 1916, for revision of the disallowance by the Auditor for the War Department (settlement No. 172503 of May 19, 1916) of claim for payment of $650 appropriated by the act of March 4, 1915 (38 Stat., 962, 980), to "Bushrod W. Nash, trustee of the Union Baptist Association, successor in interest to the Hood Swamp Baptist Church, of Wayne County."

The trustee is dead, and on the petition of his administrator the superior court of Wayne County, N. C., on April 1, 1916, appointed W. A. Dees as receiver with bond. The order of appointment recited that the Union Baptist Association was an unincorporated association, had ceased to exist, and that there exist certain claims or demands against said association.

The auditor disallowed the claim for payment because the association had ceased to exist before the receiver was appointed; that the spirit of the appropriation act "intended that the sums appropriated should be for the sole benefit of the claimants or their legal representatives and not for their creditors"; and that it would seem "a defunct organization could not be revived by appointment of a receiver, the receiver's title being derived from a thing not then in existence." Also, that "wherever payment was to be made to a corporation or quasi corporation that had been merged or consolidated with another corporation or quasi corporation, the act contemplated payment solely to the corporation or quasi corporation in which the other was merged and did not contemplate payment to a receiver or defunct organization into which no such merger was had or could exist."

The act makes appropriation for the payment of certain claims in accordance with the findings of the Court of Claims and in section 3 provides

"That in case of the death of any claimant, or the death or discharge of the executor or administrator of any claimant herein