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(Comptroller Tracewell to the Secretary of Commerce and Labor, August 26, 1904.)
In your communication of August 20, 1904, you request my decision of a question which is presented in a communication from the Director of the Census, dated August 9, 1904, of which you transmit a copy, as follows:
"An employee serves the first day of a thirty-one day month and is absent on leave without pay during the remaining thirty days. Is such an employee entitled to compensation for the one day of service according to the salary table, or must deductions be made for every day of absence without pay in accordance with the ruling of the Comptroller of the Treasury in cases where there has been less than thirty days' leave of absence without pay during such month?"
It is understood from this statement of facts that no other person was employed in the place of the employee while he was absent with leave. I am therefore of opinion that the employee is entitled to one day's pay.
FOLIO FEES OF CLERKS OF COURTS.
For making entries of fees and costs received from marshals in the cashbook kept by direction of the Attorney-General, clerks of court are entitled to folio fees for the entry in each case.
For recording papers sent up by commissioners in the final record of cases wherein indictments or informations are waived, clerks of court in the eastern district of North Carolina are entitled to folio fees, such papers constituting a part of the record, but where an indictment is found or information filed, such papers constitute no part of the final record and the clerk is not entitled to folio fees for recording them.
(Decision by Comptroller Tracewell, August 26, 1904.)
The Attorney-General, August 3, 1904, requested the revision of three accounts of W. H. Shaw, deceased, late clerk of the United States district court for the eastern district of North Carolina, one of which is for the quarter ending September 30, 1903, settled by the Auditor for the State and other Departments per certificate dated December 8, 1903.
The request of the Attorney-General as to this account relates to fees allowed by the Auditor for making entries of fees and costs received from the marshal in a separate cash
book" kept by direction of the Attorney-General (Van Duzee's case, 3 Comp. Dec., 616), and for recording certain papers sent up by commissioners in final records. His grounds of objection are well indicated by the following extracts from the report on the accounts of the late clerk made by C. R. Sherwood, examiner for the Department of Justice, dated July 27, 1904, on which the request is based, to wit:
Item 1, July 10, charge for entering fees received from marshal. 3 entries charged for. There is but one entry of 66 words. Allow 1 folio. Deduct (2 folios).................
Item 2. August 20. 2 entries charged for, 44 words, as in item 1.
Item 4. Case 2038, page 34. Final record in this case includes marshal's return on commissioner's warrant, the judgment of commissioner, mittimus issued by commissioner and marshal's return thereon. In this case there were 648 words of the record in the papers above noted. The defendant waived bill and plead guilty. The order of court as to what shall constitute the final record does not seem to include any of the papers noted above.
Deduct 6 folios at 15 c.
The record of commissioner's warrant has not been deducted, because of the fact that indictment was waived.
Item 6. Case 2040, page 34. In this case an indictment was found. Commissioner's papers, 635 words. Deduct (6 folios) .90.
The Attorney-General's request was answered by Mrs. W. H. Shaw, widow and executrix, etc., of the late clerk. She does not controvert the facts, but with respect to final records says:
"In making the final record it was the practice of Mr. Shaw, former clerk, to record the complaint, warrant, bond, or mittimus before the commissioner and he was allowed for the service."
She also submits a certified copy of the order referred to by the examiner, supra, which reads as follows:
"United States of America, eastern district of North Carolina, in the district court, December term, 1899.
"It appearing to the court that a more complete record and perfect system of keeping the criminal records of the district court at Wilmington, New Bern, and Elizabeth City, N. C., should be adopted for the convenience of the court and attorneys and other parties in interest and for keeping intact and preserving said criminal records in an orderly and methodical manner for future use, it is ordered that said records should contain the following items:
"In criminal cases:
"The information or indictment with the return or finding by the grand jury; all important subsequent proceedings, such as the issuance of the capias and returns, defaults, judgments nisi, recognizances to the final determination of said cause, including juries, pleas, verdicts, and judgments or plea of guilty and judgments, nol pros, dismissal, or other final determination thereof. When warrants are docketed at instance of district attorney and by order of court they will be recorded as informations and indictments are. All warrants of United States commissioners will be docketed.
"In sci. fa. cases:
"The recognizances or bonds or findings, defaults, and judgments nisi, the issuance of the sci. fa. and returns and all aliases thereof, answers, judgments, and dismissals or other final determinations."
With respect to entries on the cashbook I think the Auditor's allowances were correct. These fees and costs are collected by the marshal in different cases and turned over by him to the clerk, from whom he takes a separate receipt in each case, giving the style of the case and such other data as may be necessary to its identification, and in so far as it is a record at all it is a record in each particular case. This being true, it is not material whether they be entered on different days or on the same day; therefore the mere fact that two or more of them are made on the same day makes no difference. If these entries are not records in cases but an independent record, intended to show a specific result-namely, the amount received during a given period-then the whole of it would be a continuous entry or record, not affected by the date or dates upon which it or any part of it was made.
The Auditor's action upon this branch of the case is affirmed.
I will now consider the questions relating to final records.
I do not understand the practice in this district, but it appears that in some cases, either by agreement or otherwise, defendants waive the formality of indictments or information and plead guilty or are tried on commissioners' warrants, and in such cases the order directs that they "be recorded as informations and indictments are."
I do not think, however, that this expression should be construed to mean that the warrant alone should be included in the final record. Whenever a defendant is tried the record
must show the crime with which he is charged and the process by which the court who tries him obtained jurisdiction. Manifestly this is not done by a commissioner's warrant, and it seems to me that in order to give the final record in this class of cases any value at all it ought to show the complaint upon which the warrant issued and the various proceedings before the commissioner by which the trial court obtained jurisdiction.
Therefore the Auditor's action in allowing for commissioner's papers in the final record, in cases wherein indictments and information were waived and defendants tried on commissioner's warrant, is affirmed.
But in cases where indictments were found or criminal informations filed, the allowances by the Auditor for commissioner's papers in final records were clearly erroneous, for when either of these proceedings are had, all proceedings before commissioners are superseded and eliminated and form no part of proceedings had in the trial court, consequently the final record in this class of cases consists only of the indictment or information and such important proceeding as may be had subsequent to the finding of the one or the filing of the other; therefore the action of the Auditor in allowing fees for recording the warrant and other papers issued by commissioners in the final records of this class of cases is overruled and such charges will be disallowed on this revision.
Referring to the statement of the executrix respecting former services of the late clerk and payment to him therefor, it is sufficient to say that although fees for such services may have been allowed and paid, that fact is not sufficient to justify further error along the same line. (Wheeler's case, 2 Comp. Dec., 612, 613; Hart's case, 3 id., 419, 420; Caswell's case, id., 550; Sexton's case, id., 595.)
WAIVER BY THE SECRETARY OF WAR OF A PROVISION IN A CONTRACT FOR THE PAYMENT OF LIQUIDATED DAMAGES.
Where a contract contained a provision for the payment of liquidated damages for delay in completing the work, the Secretary of War is not authorized to waive said provision after the delay has occurred and the United States has acquired a vested right to the damages specified in the contract.
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Where a written contract was signed by the parties, knowing that it contained a provision for the payment of liquidated damages, a Government officer will not be permitted to show by oral evidence that it was not intended by the Government to require the provision to be inserted in the contract.
Sections 3744, 3745, and 3746, Revised Statutes, are in the nature of a statute of frauds, and are designed to protect the Government from the fraudulent or negligent acts of its officers, as well as of contractors, and therefore evidence by officers of the Government against its own interest, and inconsistent with the terms of written contracts made by them, will not be admissible for the purpose of showing that a different contract was made.
(Acting Comptroller Mitchell to the Secretary of War, August 27, 1904.)
In your communication of August 12, 1904, you request my decision of the question whether the enforcement of the provision for liquidated damages contained in the contract with A. E. Hawthorne & Co., for the construction of the buildings specified therein may not be waived.
The contract provides that the buildings shall be completed on or before November 1, 1903, and that in case of failure to complete the buildings on that date there shall be withheld from the amount otherwise due the contractors, or if the amount due them is insufficient there shall be paid by them a sum specified for each building for every day's delay in the completion thereof beyond the date specified. It also appears that none of the buildings were completed on the date specified. In 8 Comp. Dec., 104, quoting from the syllabus, it was held that
"Where, after the expiration of the time specified in a contract for the completion of the work therein provided for, a contractor is permitted to continue in the performance thereof, the time limit is thereby waived.
"The waiver of the time limitation in a contract leaves all other provisions of the contract in force, and for the performance of the work provided for therein the contractor is entitled to the price stipulated therefor in the contract, less the amount of damages arising from the delay."
In the case now under consideration the contract provides that the damages arising from the delay in the completion of the buildings is therein fixed at the sum specified therein for each day's delay in the completion of each building "as liquidated,