"25. Measurements.-The contractor must check and verify the drawings by his own measurements at the building, as he will be held responsible for the proper fitting of the work."

46. Interpretation of drawings and specifications.-In all questions as to the interpretation of drawings and specifications, the satisfactory completion of the work, and the defects necessary to be remedied, the decision of the Supervising Architect shall be final and binding upon the contractor. No interpretation of drawings and specifications may be made prior to the award of the contract." "60. Finish of fixtures.-The finish of all new fixtures is to be light oxidized brass.

*

"63. Repairing old fixtures now in place.-All single-light pendants in place in rooms to be altered or refinished under contract for alterations and betterments to accommodate the United States courts are to be placed in first-class condition, including sockets, chain pulls, glassware, and holders, as directed by the supervising chief engineer."

In the progress of the work the contractor was required to take down and refinish 64 old lighting fixtures (65 claimed to have been refinished) in such wise as to make them harmonize in finish with the new fixtures installed in other rooms by the contractor. The contractor protested against being required to refinish said old fixtures and asked for an allowance of $292.50 on account of alleged extra work involved in such refinishing. The contractor was also required to furnish four extension pieces or canopies for certain lights in rooms 347 and 343, which, it claimed, were not called for by the plans and specifications, and for which it claimed an additional allowance of $8.

With reference to the last-mentioned claim, the department ruled that the canopies were required to make the lights in connection with which they were furnished complete in accordance with the plans and specifications, and declined to recommend any extra allowance on such account.

With respect to the refinishing of the 64 old fixtures, it was likewise held that the provisions of the specifications requiring the old fixtures to be placed in first-class condition contemplated that they should be refinished.

In the decision, a reconsideration of which is now requested, it was held that the only question involved in the claim submitted was as to whether the term "repair" as used in said contract would include under those terms of the specifications above quoted, the work of "refinishing" said fixtures to make them harmonize with the new fixtures installed under the same contract, and it was concluded, under all the terms of the contract, that the contractor was obligated to refinish the fixtures without extra compensation on such account. My attention is now particularly invited to the language of paragraph 60 of the specifications, which describes the finish for all new fixtures and fails to make any such provision with respect to the old

fixtures, and it is argued from this, under the well-known principle of law that the naming of one excludes the other, that the contractor was not obligated or obliged to refinish the old fixtures.

As said in the decision of February 17, the term "repair" would not ordinarily have the broad signification which has been placed upon it in this case by the officers of the Supervising Architect's office. "To repair" is to restore to a sound state whatever has been partially destroyed; to make good an existing thing; to restore after decay, injury, or partial destruction; and as used in the contract proper, the word "repair" would ordinarily call for the doing only of such things as would place the old fixtures in a good and serviceable condition. By the term "repair," as it is ordinarily understood, is meant not to make a new thing, but to refit or make good or restore an existing thing. Authorities in support of this view were cited.

I am inclined to conclude that the present contentions of the contractor are well taken and are justified in point of law. There is not a word or line in the contract or specifications which in anywise would have put the contractor on notice that anything more was to be done to the old fixtures than was necessary to put them in good working order. There was an existing contract for alterations and betterments of the rooms in which the old lights were located, with which contract this contractor had nothing to do, and if any changes in said fixtures other than those necessary to place said fixtures in good, serviceable condition were contemplated, it would have been an easy matter so to specify.

The term "repair" as used in those contract specifications referring to the old fixtures certainly did not imply that said fixtures were to be taken down, sent to the factory, and put in a condition corresponding to the new fixtures which the contractor was to make and install, and the fact that, in specifying that the new fixtures were to be of a particular and well-described finish, not one word was anywhere said concerning the finish of the old fixtures is evidence that at the time the contract specifications were drawn there was no intention to require the successful bidder to take down and refinish such old fixtures.

There is no question or dispute that the contractor did, in addition to placing such old fixtures in first-class, workable condition, take them down and reoxidize and otherwise refinish them to make them harmonize with the fixtures installed in other rooms, nor is any question raised that if the work thus involved was extra work the price now claimed on such account is not fair and reasonable. It is admitted that 64 lights were thus refinished, for which a price of $4.50 per light is claimed.

On a reconsideration of the decision referred to, the action of the auditor in disallowing the claim on the account stated is disaffirmed, and a certificate of difference in the contractor's favor of $288 will issue accordingly; i. e., an allowance of $4.50 per fixture for the 64 fixtures refinished is made.

I find no reason for disturbing the action of the auditor with respect to the claim for the four canopies. I think a fair interpretation of the contract drawings and specifications required the contractor to furnish such canopies as a part of the contract undertaking.

PAYMENTS BY CLERKS OF UNITED STATES COURTS.

A clerk of a United States court in Alaska is entitled to credit for any payment made by him from the so-called Schedule C fund on the order or direction of the judge, the clerk having no discretion with respect to such payments.

Decision by Comptroller Warwick, July 11, 1916:

G. A. Adams, clerk of the District Court for the Territory of Alaska, Second Division, requested July 3, 1916, a revision of the action of the Auditor for the State and Other Departments in disallowing by certificate No. 7194, dated April 11, 1916, certain items amounting to $90.

The disallowances were for payments to expert witnesses (physicians) in five inquest cases, as follows:

1. To Dr. W. D'Arcy Chace, for services rendered at the inquest held upon the body of Emma Flynn, deceased, before James Frawley, U. S. commissioner, October 19, 1914, one day...

2. To Dr. Thos. L. Ferenbaugh, for service rendered at the inquest held upon the body of Nugiak (native), deceased, before Chas. J. Koen, U. S. commissioner, November 4, 1914, one day.......

3. To Dr. W. D'Arcy Chace, for services rendered at the inquest held upon the body of Stephen Naas, deceased, before James Frawley, U. S. commissioner, January 7, 1915, one day--

4. To Dr. Thos. L. Ferenbaugh, for services rendered at the inquest held upon the body of We-O-Wood-Cha (native), deceased, before Chas. J. Koen, U. S. commissioner, November 20, 1914, one day--.

$15

117

15

117

15

117

15

5. To Dr. J. H. Mustard, for services rendered at the inquest held upon the body of Emma Dalquist, deceased, before James Frawley, U. S. commissioner, March, 1913, two days_--

30

Total--

90

The foregoing payments were made upon separate orders of the court issued in each case, in effect as follows:

"You, the said G. A. Adams, clerk of said court, are hereby authorized and directed to pay the expert witnesses (physicians) fee, in the matter of said inquest, as herein above set forth, out of Schedule C fund as provided by sec. 7, vol. 35, p. 840, U. S. S. L.”

All of said orders were signed by the district judge. The auditor cited as his reason for disallowing said payment section 374, act of

March 3, 1899 (30 Stat., 1326), and paragraphs 1550, 925, and 926, Attorney General's Instructions.

Section 374 of the act of March 3, 1899 (30 Stat., 1326), provides: "That the commissioner must return to the district court a written statement, verified by his own oath, of the expense of any inquest or burial held by him, including his fees and the fees of jurors and witnesses, which account, upon being allowed by the district court, must be paid to the persons to whom the items thereof are due by the United States marshal, from moneys appropriated to pay the expenses of United States courts."

Notwithstanding the foregoing, Fund C from which these payments were made is under the control of the judge of the court, and as the judge directed payment to be made from that fund, the clerk had no discretion in the matter and is therefore entitled to credit. (See 74 MS. Comp. Dec., 160, dated July 17, 1915.)

ACTING KEEPERS, COAST GUARD.

There is no authority in existing law for the creation of the grade of acting keeper in the Coast Guard, and an enlisted man thereof whom it has been attempted to appoint to such grade, and who actually performs the duty of a keeper under such appointment, is entitled to the pay of a keeper for such duty.

Decision by Comptroller Warwick, July 11, 1916:

The Auditor for the Treasury Department submits for approval, disapproval, or modification his decision of June 27, 1916, as follows:

"This office has before it the settlement of the account of C. A. Lippincott, superintendent of the 4th Coast Guard district, for Coast Guard, 1916, for the month of March, 1916. On voucher No. 5, pay roll of Napeague Station for month of February, 1916, found therein, Robert L. Howell, acting keeper, has been paid $45 on account of clothing credit, as having served a full term of first enlistment and granted an honorable discharge.

"Robert L. Howell enlisted in the Coast Guard Feb. 22, 1915, and received pay as No. 1 surfman from Feb. 22, 1915, to April 30, 1915.

"On May 1, 1915, he was appointed acting keeper and performed the duties of keeper from May 1, 1915, to Feb. 29, 1916. He was paid from May 1, 1915, to Sept. 30, 1915, five months, at a base pay of $75 per month. During the remainder of the period, from Oct. 1, 1915, to Feb. 29, 1916, he received a base pay of $83.33 per month, the regular pay of a keeper. On March 1, 1916, he received the payment of $45 on account of clothing credit as having completed a full term of first enlistment.

"Section 11 of act of April 16, 1908 (35 Stat., 63), provides: "That an enlisted man upon first entering the Revenue-Cutter Service shall have credited to his account the sum of forty-five dollars, and upon each subsequent enlistment the sum of twenty

dollars, for uniform clothing, and such amount shall be paid to said enlisted man at the expiration of his term of enlistment if he has served a full term as prescribed by the Secretary of the Treasury and has received an honorable discharge.'

"Section 1 of the act of May 26, 1906 (34 Stat., 200), provides:

"That all persons composing the enlisted force of the RevenueCutter Service shall be enlisted for a term not to exceed three years, in the discretion of the Secretary of the Treasury, who shall prepare regulations governing such enlistments and for the general government of the service.'

"General Order No. 21 of the Revenue-Cutter Service, pars. 1 and 2, read as follows:

"1. Enlistments in the Revenue-Cutter Service shall be for the period of one year, but may be terminated at any time by direction of the Secretary of the Treasury. Enlistments shall be for general service, without reference to any particular vessel or station, and enlisted persons may be transferred from one vessel or station to another. (See arts. 573 and 575.)

"2. An enlisted person shall be considered to have served a full term of enlistment

"(a) At the expiration of one year from date of enlistment, the date of expiration to be the day of the month next preceding the anniversary of the date of enlistment.

"(b) When the enlistment is terminated by direction of the Secretary of the Treasury, for the convenience of the Government, and not by reason of inaptitude, undesirability, or unfitness.

666

(c) When the enlistment is terminated by direction of the Secretary of the Treasury because of physical or mental disability, incident to service.'

"The act of January 28, 1915 (38 Stat., 801), provides:

"SEC. 2. That in the Coast Guard there shall be a captain commandant, senior captains, captains, first lieutenants, second lieutenants, third lieutenants, engineer in chief, captains of engineers, first lieutenants of engineers, second lieutenants of engineers, third lieutenants of engineers and constructors, cadet and cadet engineers, warrant officers, petty officers, and other enlisted men, all of said officers, respectively, corresponding to the present officers of RevenueCutter Service, which are transferred to the Coast Guard, and all the present incumbents, officers, and enlisted men are also transferred to corresponding positions in the Coast Guard; a general superintendent, assistant general superintendent, district superintendents, keepers, and surfmen, which offices and positions shall be transferred from the corresponding positions in the existing Life-Saving Service and be made like positions in the Coast Guard, and all the incumbent officers and surfmen shall be transferred to such corresponding positions in the Coast Guard, in which the superintendents shall be commissioned as such, keepers shall be warrant officers and surfmen shall be enlisted men, of which enlisted men the number one surfmen shall be petty officers.

There shall be in the administrative service of the Coast Guard two chiefs of division, to be appointed by the Secretary of the Treasury, with annual salary of $3,000 each, together with such clerical and technical positions and the incumbents therein as it may

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