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of the contract, the contractors were required to furnish as many as 180 pairs, if that many pairs were actually required "by the needs of the District government" for the fiscal year 1905.
In accordance with well-established rules of construction the several provisions in the contract, pertaining to the quantities of articles to be furnished, quoted supra, must be read together. When so read, it can not be doubted that of any article the quantity specified in the schedule is modified by the provisions in article 2, supra. This article declares that the schedule specifies, "as nearly as can be ascertained,” the quantity of each article that will be required. It also contains a provision that the contract will be made "subject to the needs of the District government, whether a greater or lesser amount than is named in the schedule shall be called for." These provisions clearly indicate that the quantities specified in the schedules were intended to represent only the quantities that would probably be required, but that the quantities which would actually be required are to be determined by the "needs of the District government." The contract also contains the further provision that—
"As the requirements of the District are subject to fluctuations that may not be accurately anticipated, the right is reserved by the Commissioners to order any quantity that the wants or exigencies of the District government may require, or to make no order during the fiscal year for supplies that may not be actually needed."
This provision is explanatory of the other provisions and leaves no doubt as to their proper interpretation, namely, that the contractors are required to furnish such quantities, and only such quantities, as are necessary to supply the actual needs of the District government during the fiscal year.
Where a contract provides for a specified quantity of any article or material, to which is prefixed the word “about," or to which is added the words "more or less," or similar words, but without reference to other more specific provisions in the contract which give these words a broader meaning, such qualifying words are held to provide only for slight variations, either greater or less, from the quantity specified. Where, however, there are other provisions in the contract. which give the qualifying words a broader meaning, they will
not be so restricted. In Brawley v. United States (96 U. S., 172), the court said:
"If, however, the qualifying words are supplemented by other stipulations or conditions which give them a broader scope or a more extensive significance, then the contract is to be governed by such added stipulations or conditions. As, if it be agreed to furnish so many bushels of wheat, more or less, according to what the party receiving it shall require for the use of his mill, then the contract is not governed by the quantity named, nor by that quantity with slight and unimportant variations, but by what the receiving party shall require for the use of his mill; and the variation from the quantity named will depend upon his discretion and requirements so long as he acts in good faith."
In the present case the quantity specified is not merely qualified by such words as "about," "more or less," or the like; but other provisions in the contract render it clear that the quantity specified was not intended to control or restrain the quantity required to be furnished, namely, such as are necessary to supply the actual needs of the District government.
It appears that the District government actually needed 180 pairs of mittens during the fiscal year; that the contractors refused to furnish more than 15 pairs, and that the number of pairs so needed but not furnished by the contractors were purchased in accordance with the lowest bid submitted at a cost greater than that at which the contractors had agreed to furnish them.
I am therefore of opinion that you are authorized to deduct from the amount due the contractors for other articles the increased cost of the 165 pairs of mittens so purchased.
PAY OF AN OFFICER OF THE NAVY DETAILED TO DUTY AT THE NAVAL ACADEMY.
An officer of the Navy who is detailed as head of the department of modern languages at the United States Naval Academy is not while so detailed a 46 professor," within the meaning of section 1336, Revised Statutes, and therefore he is not entitled to the pay of a professor as fixed by said section.
(Decision by Assistant Comptroller Mitchell, April 4, 1905.)
The Auditor for the Navy Department has submitted for approval, disapproval, or modification the following decision:
"Lieutenant-Commander H. P. Huse, U. S. Navy, has presented to this office a claim for pay as commander in the Navy, corresponding in rank with a lieutenant-colonel in the Army, while serving as head of the department of modern languages to the United States Naval Academy, from December 15, 1902, to June 30, 1903.
"The following is a copy of his orders to duty, at the Naval Academy:
"Washington, October 3, 1902.
"SIR: Proceed, without delay, to Annapolis, Md., and report to the Superintendent of the Naval Academy at that place for such duty as he may assign you.
"This employment on shore duty is required by the public interests.
"W. H. MOODY, Secretary.
"Lieutenant-Commander HARRY MCL. P. HUSE, "U. S. Navy,
"New York, N. Y.'
"He reported at the Academy October 6, 1902. "The following is a copy of his assignment to duty as head of the department of modern languages, dated December 12,
"SIR: On December 15, 1902, you will regard yourself as relieved from duty in the department of navigation, and will report to Commander G. L. Dyer, U. S. Navy, as his relief as head of the department of modern languages.
“ W. H. BROWNSON,
''Captain, U. S. Navy, Superintendent. "Lieutenant-Commander H. P. HUSE, U. S. Navy, "U. S. Naval Academy.
"It appears from the Navy Register that the claimant was appointed a cadet midshipman in the Navy September 30, 1874; midshipman, June 4, 1880; ensign, June 2, 1882; lieutenant, junior grade, June 27, 1889; lieutenant, May 13, 1894; lieutenant-commander, March 3, 1901.
"During the time covered by this claim he was paid at the rate of $3,500 per annum, being the pay of a major in the Army, with which he corresponds in rank, with credit for length of service, less 15 per cent for shore duty-$2,975.
"His pay as lieutenant-commander under section 1556 of the Revised Statutes would be for shore duty first five years $2,400.
"The following is a copy of his application for pay as lieutenant-colonel in the Army:
"I hereby make a claim to be paid while serving as head of the department of modern languages at the United States Naval Academy as a commander in the Navy, corresponding to a lieutenant-colonel in the Army, at the rate of $4,000 a year, instead of the pay previously received by me while on such service as a lieutenant-commander. The time covered by this claim extends from the 15th day of December, 1902, to 30th day of June, 1903, and is presented for that time only, although I had similar service before and after, for the reason that I desire to make a claim in the first instance only for one of several periods and for which I have a distinct order complete in itself and requiring no reference to the journal of the Academic Board.'
"By section 1336 of the Revised Statutes:
"Each of the professors of the Military Academy whose service at the Academy exceeds ten years shall have the pay and allowances of colonel, and all other professors shall have the pay and allowances of lieutenant-colonels. hereafter there shall be allowed and paid to the said professors ten per centum of their current yearly pay for each and every term of five years' service in the Army and at the Academy; Provided, That such addition shall in no case exceed forty per centum of said yearly pay; and said professors are hereby placed upon the same footing, as regards restrictions upon pay and retirement from active service, as officers of the Army.'
"The act making appropriations for the support of the Military Academy for the fiscal year ending June 30, 1903, provides:
"That the professors and the associate professors of the United States Military Academy shall have the actual rank in the United States Army now assigned to them by assimilation in the regulations of the Military Academy prescribed by the President of the United States, and that they shall exercise command only in the academic department of the United States Military Academy.' (Act June 28, 1902, 32 Stat., 409.)
"By section 13 of the act of July 15, 1870 (16 Stat., 319), professors whose service exceeded thirty-five years were to receive the pay and allowances of a colonel; those whose service had been less than thirty-five years (but exceeds twenty-five years) were to receive the pay and allowances of lieutenantcolonel, and all other professors were to receive the pay and emoluments of major. By the act of February 28, 1873 (17 Stat., 479), professors whose service exceeded ten years were to receive the pay and emoluments of colonel, and all other professors the pay and allowances of lieutenant-colonel.
"The claimant while performing the duties as 'head of the
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department of modern languages' at the Naval Academy did not come within the term other professors' within the meaning of section 1336 of the Revised Statutes. He was an officer of the line of the Navy. He was detailed not as professor, but as 'head of the department of modern languages.'
"His case is not analogous to that of an officer exercising in time of war under assignment in orders a command above that pertaining to his grade, within the meaning of the decision of the Court of Claims in the case of Chauncey Thomas, No. 22790, decided by the court January 5, 1903, as he did not exercise a command, nor do his duties come within the decision in the case of the United States v. Crosley decided by the Supreme Court December 5, 1904, as he was not detailed as aid to a rear-admiral. His case is not analogous to that of Roller Richardson (38 Ct. Cl., 182.)
"The Assistant Comptroller did hold, January 11, 1904 (10 Comp. Dec., 523), under section 13 of the navy personnel act, that paymasters in the Navy were entitled to mounted pay, but the Comptroller decided April 14, 1904, that under a similar law, section 3 of act of April 12, 1902 (32 Stat., 100), engineer officers of the Revenue-Cutter Service were not entitled to mounted pay. The question is now in the Court of Claims.
"I am of opinion and so decide that Lieutenant-Commander Huse while on duty at the Naval Academy as 'head of the department of modern languages,' does not come within the term 'other professors' as used in section 1336 of the Revised Statutes, and is not entitled to the pay of a lieutenant-colonel in the Army."
Section 13 of the navy personnel act (30 Stat., 1007) provides:
"That, after June thirtieth, eighteen hundred and ninetynine, commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army: Provided, That such officers when on shore shall receive the allowances, but fifteen percentum less pay than when on sea duty; * * * "
The corresponding rank in the Army of a lieutenantcommander in the Navy is that of major. (Sec. 1466, Revised Statutes.)
The claimant, being a lieutenant-commander, is therefore entitled to the pay provided for major in the Army.
The position of professor at the Military Academy is an office separate and distinct from any other office in the Army,