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as captain, retired, of the Revenue-Cutter Service from August 1 to 30, 1904, disallowed $7.29. The Secretary of the Treasury by application filed November 9, 1904, requested a revision of the account.
It appears that the pay of Captain Healy for the month of August, 1904, is $218.75, being the pay of a major of the Army placed on the retired list after twenty years of service, but that he died on the night of August 30, 1904, before midnight, having therefore been in the service only thirty days in August, 1904. In view of this state of facts the Auditor allowed him only twenty-nine thirtieths of the monthly pay.
The Secretary of the Treasury, in his application, states that no person has been or will be appointed to fill the vacancy caused by the death of Captain Healy.
The question for how many days in the month of August the administrator of Captain Healy should be paid necessarily depends upon the construction to be given the following clause of section 4 of the act making appropriations for the sundry civil expenses of the Government for the fiscal year ending June 30, 1905:
"And in making payments for a fractional part of a month, one-thirtieth of one of such installments, or of a monthly compensation, shall be the rate to be paid for each day."
If Captain Healy had died on the 29th day of August, it would be perfectly apparent that under such clause his administrator would be entitled to receive twenty-nine thirtieths of the one-twelfth part of the annual salary.
Applying the same rule to the facts in this case, he is entitled to receive thirty-thirtieths of the one-twelfth part of the annual salary. If he had died on the 31st of the month he would necessarily receive no more because there is no thirtyfirst part of a month's salary with which to compensate for that day.
Captain Healy was in a pay status for thirty days in the month of August, and under the plain letter of this act his administrator is entitled to receive pay for a fractional part of a month at the rate of one-thirtieth of a monthly instalment for each day so served. The fraction of this particular month is thirty days, and consequently he is entitled to receive thirty days' pay for said month, no other person filling said office on the 31st day of August.
The action of the Auditor is reversed.
USE OF ANNUAL APPROPRIATIONS.
Ordinarily, repairs made to a vessel will be presumed to be for the needs of the fiscal year in which the repairs were ordered, but this presumption may be overcome by the facts in the particular case, and where such facts show that the repairs are for the needs and uses of the next fiscal year, the appropriation for the latter fiscal year is exclusively applicable thereto.
(Comptroller Tracewell to the Secretary of Commerce and Labor, November 12, 1904.)
In your communication of October 25, 1904, you request my decision of a question which you therein present as follows:
"Under the provisions of section 8 of the act of July 31, 1894, I have the honor to submit to you the following facts concerning an expense incurred by the Coast and Geodetic Survey, of this Department, bill for which is about to be presented for payment; and I request your decision upon the following questions arising thereunder:
"Is the expense chargeable against the appropriation for repairs for vessels of the Coast and Geodetic Survey for the fiscal year 1904, or the fiscal year 1905, or is such portion of the work done and materials furnished during the fiscal year 1904 chargeable against the appropriation for that year and such portion as was done during the fiscal year 1905 chargeable against the appropriation for that year?
"In view of the fact that the total bill incurred is in the neighborhood of $28,000, while the appropriation for the year 1904 is completely exhausted and the available balance of the appropriation for the year 1905 applicable to the payment of this claim is only about $10,000, may that sum be paid on account, the balance remaining unpaid, unless Congress thereafter should recognize the balance as an obligation and provide for its payment by deficiency appropriation? In case the $10,000 may be paid upon this claim may the creditor present his claim in two bills, one for items aggregating $10,000, and the other for the balance of its claim; or may it present its claim in one bill, receipting for the payment of $10,000, sending the bill with the attached receipt for $10,000 as a voucher for the disbursing officer making the payment?
"Your early decision upon these questions will be greatly appreciated, as the repairs are now completed and it is desired to make use of the vessel upon which the repairs have been made, and upon receipt of a payment upon account of $10,000 the dock company which has made the repairs is willing to turn over the vessel, trusting to Congress recognizing the
balance of their claim as a moral obligation and providing for payment of the same by deficiency appropriation.
The material facts of the case, as reported to me by the Superintendent of the Coast and Geodetic Survey, are as follows:
"In the spring of 1904, the U. S. S. Pathfinder, a steamer of the Coast and Geodetic Survey, reached the port of Hongkong in very bad condition, and certain repairs and equipment were ascertained to be necessary to put her in an efficient condition, and a report and estimate was made and submitted to the Superintendent of the Survey. According to the estimate the probable cost of the repairs, exclusive of equipment, was stated to be $12,000. The appropriation for repairs for the year 1904 was exhausted. An appropriation for this purpose had been made for the fiscal year 1905, available, as are all annual appropriations when not otherwise specified, on the first day of July, 1905. The repairs which the Pathfinder was reported as needing were of such a nature that it was known that they could not be completed during the fiscal year 1904 so as to render the vessel of service during the balance of that year. In order to fit her for service during the fiscal year 1905, and in order that there might be no unnecessary delay in using her, the Superintendent of the Coast and Geodetic Survey, on June 14, cabled to the assistant in charge of the Pathfinder, acting as captain of the vessel, to proceed with repairs according to a letter of the Superintendent, dated April 4, in which mention was made of the fact that the estimated cost of repairs would be $12,000. The cable stated that the repairs were to be charged against the appropriation for 1905. Neither completion of the repairs nor payment for the same, or any part of the same, nor use of the vessel, was contemplated until long after the fiscal year 1905 was begun. The Hong Kong and Whampoa Dock Company (Limited), were reported to the Superintendent of the Survey as having a practical monopoly of the ship-repairing business at Hongkong. The established policy of that company is to make repairs, not by contract, but according to a certain posted schedule of prices for labor performed and material furnished. On June 15, the captain of the Pathfinder wrote to the manager of the Hong Kong and Whampoa Dock Company as follows:
In accordance with the cablegram received this day from the Superintendent of the Coast and Geodetic Survey, you are hereby authorized to proceed with the repairs as outlined in the specifications delivered to you on June 10, 1904.'
"The work as per specifications is now practically completed. The cost of it has been greatly in excess of the original estimate of $12,000. This was due apparently to the fact that certain repairs which were called for by the specifi
cations took much more labor and material than was supposed they would take when the estimate was made. While it was the intention of the Coast and Geodetic Survey to limit the cost of the repairs to the amount of the estimate, it is apparent that the captain of the vessel thought he was authorized to have the repairs made which were mentioned in the specifications, regardless of cost, except that the cost was to be governed by the schedule of prices fixed by the dock company. As soon as the Superintendent of the Coast and Geodetic Survey received from the captain of the Pathfinder information that the cost of repairs would exceed the appropriation available for the payment thereof, he took steps to have the work stopped. The cost of the work already incurred is approximately $28,000. The Hong Kong and Whampoa Dock Company have been informed that there is now only about $10,000 available to meet the said claim. It has, however, consented to turn the vessel over to the Coast Survey officials if such payment is made, and to look to Congress for the passage of a deficiency appropriation bill.”
Your submission presents a question not entirely free from doubt.
The repairs in question put upon the vessel, the U. S. S. Pathfinder, a vessel of the Coast and Geodetic Survey, which repairs were commenced about the middle of June, 1904, near the close of the fiscal year 1904, and completed in the fiscal year 1905, were not made under a contract providing that a sum in gross should be paid for these repairs, but they were to be paid for according to schedule prices of the company making the repairs; that is, the company making the repairs were to be paid for the materials used and the labor furnished according to a schedule of prices for the same.
Under this arrangement there would be little or no difficulty in apportioning the cost of these repairs to the fiscal years in which they were actually made. This has been the usual rule of disposing of this class of cases.
But the facts in this case present another phase which accentuates the difficulties arising in the use of annual appropriations. This vessel was in bad repair during and near the close of the fiscal year 1904. Ordinarily, repairs put upon a vessel or other object will be presumed to be for the needs of the fiscal year in which the repairs are ordered, but this is only a presumption, and may be overcome by the facts in the particular case. This presumption is not conclusive, but is rebuttable.
The use of this annual appropriation, like all others, must be governed by the rule that an annual appropriation can only be used for the needs and uses of the particular fiscal year for which it is made, or in payment of contracts properly made for such use and needs. It does not necessarily follow as a fact that because this vessel was out of repair at the close of the fiscal year 1904 that future repairs put upon it should be made out of the appropriation available for this particular fiscal year, or that it necessarily must have been repaired at all. Its repair or the failure to repair it depends upon the future uses to which it was in contemplation to put it, or to a determination to abandon its use.
If it had been contemplated to abandon the use of the vessel, in all probability it would not have been repaired at all. But, as I understand the facts set out in your submission, there was no intention on the part of the Government to use this vessel during the remainder of the fiscal year 1904. So far as the fiscal year was concerned, it was the same as though this vessel had performed all the uses for which it was built or purchased. When these repairs were ordered the appropriation available for its repairs for the fiscal year 1904 was all expended. The appropriation applicable to repairs on this vessel for the fiscal year 1905 had been made at the time the repairs in question were ordered. They were specifically ordered to be made out of the appropriation for the fiscal year 1905.
Under all these facts I am of opinion that the repairs so ordered were for the uses of the fiscal year 1905, and that you are authorized to make payment to the contractor for these repairs out of the appropriation for the fiscal year 1905 in so far as you have an unexpended balance thereof.
The anticipation of the use of an annual appropriation has been recognized by the decisions of this Office. (2 Comp. Dec., 202; 4 id., 553; 5 id., 486.)
If the use of an annual appropriation could not be anticipated, not for the purpose of making payments before they are available, but for the purpose of contracting for the services and uses of the year for which they are made, great delays and losses would happen to the Government. On the whole case, I am inclined to the opinion that these repairs were for the needs and services of the fiscal year 1905, and that it would not be proper to apportion any of the cost of