« PředchozíPokračovat »
the claimant for the materials, etc., furnished in the construction of the wharf and boathouse. I think the appropriation for Life-Saving Service, 1903, which provides for rebuilding and improvement" of stations, is applicable thereto. But I do not think there is any obligation upon the Government to compensate the contractor for his loss.
The following cases indicate the uniform opinion of the courts that a contractor is not entitled to compensation for his loss by the destruction of his work before completion.
In Adams v. Nichols (19 Pick., 275) it was held that where a person contracted to build a house on the land of another, and the house was destroyed by fire before its completion, without fault of the contractor, he was not thereby discharged from his obligation to build the house.
In School District v. Dauchy (25 Conn., 530), it was held that where a person agreed to build a schoolhouse and had nearly completed it when it was destroyed by lightning, he was not thereby excused from the performance of his contract.
In Archer v. McDonald (36 Hun., N. Y., 194), it was held that where a person agreed to store in a warehouse a quantity of lime to be delivered to the owner when called for, and the lime was slaked by water used in extinguishing a fire, without negligence of the contractor, he was not entitled to storage, nor to retain money advanced on account of the storage.
In Tompkins v. Dudley (25 N. Y., 272), it was held that where a person agreed to build a house on the land of another, and had substantially but not wholly completed it, and it was destroyed by fire, he is liable for damages for nonperformance and for money advanced upon the contract.
In Stees v. Leonard (20 Minn., 448), it was held that where a person agreed to erect a complete building, and had carried it to the height of three stories when it fell down by reason of a latent defect in the soil, he is not excused from performance of his contract.
In School Trustees v. Bennett (27 Ducher, N. J., 513), it was held that where a person contracted to build and complete a building for $2,610, of which $2,200 was to be paid in installments as follows: $300 when the first floor of joists was on; $300 when the second floor of joists was on; $1,000 when the building was inclosed; $400 when the plastering was done; $200 when the building was completed, except the roughcasting; and the balance to be paid when the whole was finished; and when the building was nearly completed, $1,600 having been paid, it fell down, the loss falls upon the contractor, and the owner is entitled to recover the installments paid.
This case is to be distinguished from the cases in 2 Comp. Dec., 365 and 7 id., 443. In those cases the contracts provided for payment for work actually executed and materials. put in place.
The action of the Auditor is affirmed.
COMPUTING PAYMENTS OF SALARY FOR A FRACTIONAL PART OF A MONTH.
Where a rural letter carrier qualified and entered upon duty on a newly established route on the 15th day of a thirty-one day month, he is entitled to one-thirtieth of the monthly salary for each day he serves during the remainder of said month.
Where an acting clerk, who was appointed to take the place of a railway mail clerk who had been injured in an accident, entered upon duty on the 15th day of a thirty-one day month and served during the remainder of the month, he is entitled to one-thirtieth of the monthly salary for each day's service, provided there was sufficient of the monthly salary to make such payments that was not paid to the regular clerk.
(Comptroller Tracewell to C. II. Barker, postmaster, Portland, Me., August 19, 1904.)
In your communication of August 15, 1904, you request my decision of two questions which you present therein, as follows:
"In accordance with the instructions in your decision (May 2, 1895, vol. 1, p. 417) this office respectfully asks for a ruling in the following cases:
"A rural letter carrier was appointed and commenced service July 15, 1904. Is the carrier entitled to sixteen or seventeen days' pay for services during the remainder of the month? (It was a newly established route.)
"A railway postal clerk has been injured in an accident and an acting clerk is appointed to take his run while he is laid off. The acting clerk is appointed and commences his labor July 15, 1904. Is this acting clerk entitled to sixteen or seventeen days' pay for services performed during the balance of the month?
"Your ruling in the above cases is very much desired by this office."
1. The rural letter carrier appointed for service on a newly established route and therefore presumably having no predecessor, is entitled to one-thirtieth of a month's pay for each day's service of seventeen days.
You do not state in your second question how many days the regular clerk served in the month or how many days he was paid for in said month.
The regular clerk was not in a pay status after the date of the injury. The acting clerk should be paid one-thirtieth of the monthly salary for every day he served in the month, provided there is enough left of the monthly salary to make such payments not taken up by the regular clerk. In other words, if the salary has not been paid to the regular clerk, he should suffer a loss of one-thirtieth of a month's salary for each day he lost in the month of July, leaving the balance of the monthly salary to be paid to acting clerk, if he served the remainder of the month.
PAY OF PER DIEM EMPLOYEES OF THE WASHINGTON NAVY-YARD FOR SATURDAY HALF HOLIDAYS.
Per diem employees of the Washington Navy-Yard are entitled to pay for Saturday afternoons, Labor Day, and Inaugural Day, although not performing work thereon, provided they are excused from work on such days by Executive order.
(Comptroller Tracewell to the Secretary of the Navy, August 19, 1904.)
By your reference dated August 10, 1904, of a communication from the Superintendent of the Naval Gun Factory of the navy-yard at Washington, D. C., dated August 8, 1904, you request my decision of the questions which were therein presented as follows:
"1. Attention is respectfully invited to the decision of the Comptroller of the Treasury as published in Friday evening's and Saturday morning's newspapers of this city relative to the payment of per diem employees for the Saturday half holidays and also Inaugural and Labor days.
"2. The pay officer of this yard has officially visited the Treasury Department and has had shown him the official decision of the Comptroller, and he has also been informed that this decision applies equally to the per diem employees of this yard and to all Government per diem employees for that matter in the District of Columbia, and he was also informed that the accounts, pay rolls, etc., when rendered to the Treasury to be audited, would be affected thereby.
"3. In view of the above I would respectfully request instructions regarding the allowance of pay made for the half holidays during the month of July, for which pay rolls have already been submitted, as to the recovery of such amounts as may be practicable, and also as to payment for the Saturday half holidays during this month and next.
4. I would also respectfully request instructions as to payment to per diem employees for Labor Day and Inaugural Day.
5. I would also ask to be informed if distinction shall be made as to office per diem employees, inasmuch as a half hour each day has been added to the former hours for several months past.
Before taking up the matter of your submission herein I desire to state that no information or statement was given out by me or by my authority concerning the effect of my decision of July 30 last. That the language therein used was intended to apply, and only apply, to the facts of that case and to the class of laborers described in that submission and employed as they were employed, which are clearly distinguishable from the facts in this case. The persons affected by that decision were day laborers upon a particular building and not continuous employees in the Government service, and there was no pretense that any Executive order had been issued granting to them Saturday afternoons as legal holidays.
Your submission presents three questions proper for me to decide, as they affect the regular per diem employees of the Washington Navy-Yard:
(A) Whether such employees can legally be paid for the Saturday afternoons occurring in the present month and the month of September regardless of whether they perform their customary labor on said half days.
(B) Whether such employees are entitled to be paid on Labor Day and Inauguration day.
(C) Whether a distinction should be made as to pay between the per diem employees of the shops, those working in the shops, and the office force of the shops for said half days, or on Labor or Inauguration days.
It is provided by the acts of Congress dated January 6, 1885 (23 Stat., 516), and February 23, 1887 (24 Stat., 644), that per diem employees at Washington and elsewhere shall be allowed New Year's Day, Washington's Birthday, Fourth of July, Thanksgiving Day, and Memorial Day, as holidays,
and that they shall receive the same pay on these days as on other days.
The act of June 28, 1894 (28 Stat., 96), provides:
"That the first Monday of September in each year, being the day celebrated and known as Labor's Holiday, is hereby made a legal public holiday, to all intents and purposes, in the same manner as Christmas, the first day of January, the twenty-second day of February, the thirtieth day of May, and the fourth day of July are now made by law public holidays.
The act of June 18, 1888 (25 Stat., 185), amends section 993 of the Revised Statutes which relates to the District of Columbia, and the amendment provides that the day upon which the President of the United States is inaugurated shall be a holiday for all the purposes mentioned in said act.
Section 1389 of the District code provides, as it relates to Saturday afternoons, that every Saturday after 12 o'clock noon shall be a holiday in the District within the meaning of this section. This section was amended on June 30, 1902 (32 Stat., 543), by the following language:
"By striking out the words within the meaning of this section' and inserting in lieu thereof the words 'for all purposes.'
The act of Congress of March 15, 1898, provides as follows:
"That * * * it shall be the duty of the heads of the several Executive Departments, in the interest of the public service, to require of all clerks and other employees of whatever grade or class, in their respective departments, not less than seven hours of labor each day, except Sundays and days declared public holidays by law or Executive order: Provided, That the heads of the departments may, by special order, stating the reason, further extend the hours of service of any clerk or employee in their departments respectively; but in case of extension it shall be without additional compensation."
From the foregoing laws it is seen that Congress has not in terms granted to per diem employees of the Government in the District of Columbia or elsewhere either Labor Day, Inauguration day, or Saturday afternoons as holidays with
That the clerks and employees of whatsoever grade in the Executive Departments proper are not required to work seven hours a day or any other number of hours on any public holiday fixed by law or Executive order.