later than the 1st day of September, 1904. In the contract liquidated damages in terms are provided for and fixed in the sum of $20 for each day's delay in so completing the work, and additional provision made for the forfeiture of $4.50 per day for each inspector employed on the work, if the work be delayed by reason of insufficient force of workmen.

The contract was not completed within the time stipulated. In your letter it is stated that the failure to complete has caused no loss or damage to the District of Columbia, since the water department of the District was not prepared to accept the engine on the date above mentioned. It is further stated by you that the delay of the contractor was caused largely by the failure of a subcontractor to furnish material under his subcontract. In view of these facts it is desired by you to now grant an extension of the original contract period until January 1, 1905, without charging the penalties provided for and imposed upon the contractor for such default by the terms of the contract.

Tersely put, my decision is now asked on the following question: Can a retroactive extension of the original contract period be now granted, and waiver made of the contract rights of the District so as to remit damages and penalties which have already accrued to and vested in the District?

The answer must of necessity be negative. If, at the proper time, the time limitation had been waived and the contractor been allowed to continue the work contracted for, such waiver would not have affected the other provisions of the contract. On the contrary, they would have continued in full force. (See 8 Comp. Dec., 104; MS. Dec., vol. 18, pp. 767, 829, 858.) In 8 Comp. Dec., 133, it was held that—

"where the time specified in a contract for the completion of the work provided for therein is waived, a provision therein for damages for delay continues in force after the expiration of the time so specified."

It has also been uniformly held by this Office that—

"Immediately on the failure of a contractor to complete the work provided for in the contract, within the time stipulated, the penalty provided therein for delay vests in the United States, and the officers of the United States are without authority to waive it." (See 5 Comp. Dec., 749; MS. Dec., vol. 12, p. 675; MS. Dec., vol. 15, p. 489.)

The failure of a subcontractor to furnish material, resulting in delay by the contractor beyond the contract period, will in no way relieve the latter from his contract liability. This point was fully considered in 6 Comp. Dec., 748, wherein it was held that

"The remission of a penalty incurred by a contractor for delay in completing a vessel within the time fixed by the contract for its completion, such delay having been caused by the failure of a subcontractor to furnish an engine to be placed in the vessel, is not authorized, notwithstanding that the subcontractor was selected by the Government, such selection having been provided for in the contract."

Under the facts stated in your letter and the decisions of this Office, it is my opinion that the time limitation fixed in the contract for the completion of the work can not now be extended to January 1, 1905, and thereby relieve the contractor from damages, be they liquidated or actual, as the law and facts may justify, accrued under the contract at the date of such extension.

I do not understand that I am called upon to pass upon the nature of the damages provided by this contract or the amount thereof.

FEES OF UNITED STATES COMMISSIONERS.

Where a United States commissioner claimed fees for services which had not been performed at the time the account therefor was presented, settled, and paid, the Comptroller will not, on revision, overrule the Auditor's allowances thereof if it be shown that said services have been performed prior to such revision.

(Decision by Comptroller Tracewell, January 31, 1905.)

On January 17, 1905, the Attorney-General requested the revision of certain allowances made by the Auditor for the State and other Departments in the accounts of Louis L. Ullman, United States commissioner, western district of New York, for the quarters ending December 31, 1903; March 31, 1904; and June 30, 1904, settled per certificates dated March 26, June 17, and October 14, 1904, respectively, to wit:

1. Charges for entering returns on certain writs which had not been entered when the accounts therefor were presented, settled, and paid, aggregating ...........

$3.30

2. Overcharges for issuing subpoena in United States v. Vaughn and Balch, June quarter, 1904..

45

The Attorney-General's request is based on the report of an examiner for his Department, dated November 1, 1904, showing that the services indicated in said items 1 and 2 had not been performed.

On the receipt of the Attorney-General's request claimant was duly notified thereof, and in his reply thereto, dated January 25, 1904, states, under oath, that the returns referred to have now all been entered as of the dates, as near as he could fix them, when the said writs were returned and filed. As to the overcharge on subpoena he says nothing.

In Gaston's case (6 Comp. Dec., 285), I held that a United States commissioner was not entitled to fees for services which had not been performed by him at the time he rendered his account therefor, even though he subsequently performed them; but the courts have taken a different view of the law, and, as heretofore announced (Watson's case, 10 Comp. Dec., 647; Russell's case, id., 792), I think it the better practice for the accounting officers to follow the courts.

Therefore the allowances by the Auditor for entering the returns now under consideration are affirmed, and the decision in the Gaston case (supra) is modified accordingly.

Item 2, overcharges on subpoena, will be disallowed on this revision.

This disposes of all the questions raised by the AttorneyGeneral, but I find on examination of these accounts that intwo cases, United States v. Fong You and United States v. Wong Name, for violation of Chinese exclusion acts (March quarter, 1904), commissioner charged for issuing two commitments, on January 12, 1904, in each case, the one charged on line 8 of vouchers and designated "temporary," the other on line 15 without special designation, and that the Auditor allowed the fees on each one.

Both of these defendants were discharged; consequently there could have been no final writ for commitment or deportation, and but one writ being necessary to commit for a hearing before the commissioner, it is evident that the second charge in each case is a clerical error; therefore the allowances thereon, aggregating $2.30 ($1.15 in each case), are now disallowed.

Let a certificate of no differences issue as to the December quarter, 1903 account, and certificates of differences as to the

March and June quarters, 1904 accounts, disallowing and recharging $2.30 in the former and 45 cents in the latter.

Claimant, in his said reply, directs my attention to certain differences by the Auditor in settling the account for the March quarter, 1904, which I find, upon examination, to be suspensions only; therefore I am without jurisdiction to revise them. (Par. 3, sec. 8, act of July 31, 1894, 28 Stat., 208.)

Explanations to these suspensions (items 1 and 2 of Auditor's statement) may be made to the Auditor, when, if he disallows them, claimant will have the right to appeal to the Comptroller for the revision thereof.

PAYMENT FOR PRINTING FOR THE EXECUTIVE

DEPARTMENTS.

The appropriation for public printing and binding is exclusively applicable to the expense of printing done at the Government Printing Office for an Executive Department; and therefore the appropriation for the reclamation service can not be used to pay for printing done at said office for the Department of the Interior.

(Comptroller Tracewell to J. D. McChesney, chief disbursing clerk, Geological Survey, January 31, 1905.)

In your communication of January 25, 1905, you request my decision upon a question which you therein present, as follows:

"There are two bills pending in this Office for printing at the Government Printing Office, for the Reclamation Service. One amounts to $440.25 and the other $1,281.31. I am directed to deposit the amount of these printing bills for the Reclamation Service in the Treasury, with a view of having the money charged to the reclamation fund and credited to the appropriation for public printing and binding for the Interior Department.

Being in doubt about the propriety of doing so, I forward these bills to you and request you to instruct me as to my duty in that regard."

The so-called "printing bills" are in the form of vouchers and are in the nature of transfer accounts. They represent the cost to the Interior Department of printing done by the Public Printer for that Department in connection with the reclamation fund provided for by the act of June 17, 1902

(32 Stat., 388), and are intended to provide for reimbursing the appropriation for public printing and binding for the Interior Department, from which the cost thereof was paid, by paying the amount thereof from the appropriation known as the reclamation fund.

The items included in one of the vouchers are for printing letter heads, ruled tablets, blank forms of bills of lading, orders for travel, bonds, proposals, and vouchers of various kinds, including vouchers for supplies, for services, for traveling expenses, for transportation, for payments under contracts and for pay rolls, and advertisements and specifications for contracts.

It is understood that all of these forms were prepared and issued by the Interior Department at Washington. Many of the forms have the heading "Department of the Interior, United States Geological Survey, Reclamation Service," one of the letter heads and the advertisements having added. thereto "Washington, D. C." The advertisements also have printed thereon as signatures thereto "Thos. Ryan, Acting Secretary," and many of the vouchers have printed in the forms for receipts "Jno. D. McChesney, Chief Disbursing Clerk, U. S. G. S."

The other voucher is for one item only, namely, for printing and binding 600 copies of the "Second Annual Report of the Reclamation Service." This report is a public document, being the report of the chief engineer of the Reclamation Service at Washington, D. C., submitted by him November 27, 1903, to the Director of the Geological Survey, by him transmitted to the Secretary of the Interior, and by the latter transmitted to Congress, and published as Document No. 44, Fifty-eighth Congress, second session, House of Representatives.

In view of the foreging facts I am of opinion that the printing referred to was done for an Executive Department and properly done by the Public Printer, as required by section 87 of the act of January 12, 1895 (28 Stat., 622), which provides that all printing for the Executive Departments "shall be done at the Government Printing Office, except in cases otherwise provided by law," and that the cost thereof is payable from the appropriation for public printing and binding only. (7 Comp. Dec., 33; 11 id., 150,164.)