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grade of gunner by authority of a provision in the act of March 3, 1901 (31 Stat., 1129), and took the oath of office November 16, 1904.

The Paymaster-General United States Navy, by an indorsement on Mr. Crowell's letter, states as follows:

"1. The act of June 22, 1884, amending section 1561, Revised Statutes, reads as follows:

*** That on and after the passage of this act any officer of the Navy who may be promoted in course to fill a vacancy in the next higher grade shall be entitled to the pay of the grade to which promoted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill.'

“2. The act of March 3, 1901, provides for the appointment by the President, under certain conditions, of warrant officers to the rank of ensign to fill vacancies existing in that grade on July 30 of that year.

"3. Although Ensign Vanderbeck was promoted to fill a vacancy in the grade of ensign, and the law provides that his commission shall date from July 30, in view of the decision of the Comptroller referred to in the within letter, wherein it is held that a warrant officer promoted to chief warrant officer is not an officer' as contemplated by the act of June 22, 1874, it is recommended that this question be submitted to the Comptroller of the Treasury for decision as requested.”

I am of opinion that the act of June 22, 1874 (18 Stat., 191), quoted has no application to Mr. Vanderbeck's appointment. It applies by its terms only to cases of promotion “in course, i. e., in regular succession. There is no provision of law for the regular succession by promotion from the warrant class of officers of the Navy to that of commissioned officers.

The statute which is the authority for the appointment of Mr. Vanderbeck provides for the appointment of a limited number of certain warrant officers, who possess prescribed qualifications and who receive recommendations from certain specified officers, to the commissioned rank of ensign. The law referred to (31 Stat., 1129) is as follows:

“Whenever, in view of the vacancies in the grade of ensign on July thirtieth of any year unfilled by graduates of the Naval Academy, the Secretary of the Navy shall so recommend, the President may appoint to that grade, as of July thirtieth, from among the boatswains, gunners, or warrant machinists, not exceeding six in any one calendar year. No person shall be so appointed who is over thirty-five years of age; who has served less than six years as a warrant officer; who is not

recommended by a commanding officer under whom he has served; nor until he shall have passed such competitive examination as may be prescribed by the Navy Department."

Ensign Vanderbeck's appointment rests solely upon this statute. In providing that the appointment shall be “of July thirtieth,” it authorizes an appointment nunc pro tunc, and is equivalent to authorizing the antedating of the commission. Under decisions of the courts this entitled the appointee to pay from the date the appointment is to take effect, viz, July thirtieth.

In McAlpine v. United States (27 Ct. Cl., 491) the court said:

“When Congress authorizes the dating back of commissions it intends to give to officer pay from such date unless otherwise expressed."

In Collins v. United States (15 Ct. Cl., 22) it was held, quoting from the syllabus:

“ The appointing power, by antedating the appointment or commission of a public officer, can not create a liability on the part of the Government, but the legislative branch of the Government can."

This doctrine is supported by United States v. Vinton (2 Sumner, 299); Burchard v. United States (125 U. S., 179).

The decision of this office of June 14, 1904, to which the Paymaster-General refers, relating to the case of a gunner appointed chief gunner by authority of the act of March 3, 1899 (30 Stat., 1007) has no application to this case. In the former case the statute did not authorize the appointment as of á prior date and there was no intention manifested that rank or pay should begin before the commission was given.

I am of opinion that Mr. Vanderbeck is entitled to the pay of an ensign from July 30, 1904.

PAYMENT OF MONEYS WITHHELD AS RETAINED

PERCENTAGE. Where a contract to do a specified work at two places for a specified con

sideration which applied to all the work at both places provides that 10 per centum of each monthly payment shall be reserved -until completion of the work under contract,” payment of the amount thus retained can not be made until the completion of all the work provided for in the contract.

(Assistant Comptroller Mitchell to the Secretary of War,

December 27, 1904.)

I have received by your authority the following communication from the Chief of Engineers, United States Army, dated December 5, 1904:

"1. Respectfully submitted to the Comptroller of the Treasury with request for a decision as to whether, under the terms of the contract dated October 10, 1902, between Lieut. Col. H. M. Adams, Corps of Engineers, and John Short, the amount retained by the United States during the progress of the work at Sabine Pass is properly payable to the contractors prior to the completion of all the work provided for in the contract.

"2. The general condition of work under the contract is set forth in the letter of the district officer, dated October 14, 1904, and in the first indorsement thereon this office took the position that the reserved percentage was not payable until the work of both localities had been completed.

"3. In view, however, of the exceptions taken to this ruling the question is submitted for decision.'

It appears that on October 10, 1902, the United States entered into a contract in writing with one John Short, of St. Louis, Mo., the material parts of which, so far as the question presented is concerned, are as follows:

“The said John Short shall furnish all the labor, materials, tools, machinery, and appliances and do all the work necessary for repairing and building up the east jetty at Sabine Pass, Texas, and for repairing and extending the east jetty at Calcasieu Pass, La., by constructing and putting in place brush mattress, by furnishing and putting in place riprap stone for filling, and by raising and replacing granite blocks, all in conformity with the specifications hereto attached.

“In consideration of the faithful performance of this contract by the said John Short the said Lieut. Col. H. M. Adams, for and in behalf of the United States of America, agrees to pay or cause to be paid to the said John Short ninety-five (95) cents for each and every square yard of brush mattress furnished in place, two dollars and fifty cents (20%) for each and every ton of 2,000 lbs. of riprap stone furnished in place, and one dollar and fifty cents (10) for each and every granite block raised and placed, in conformity to the attached specifications."

Sections 30 and 31 of the specifications, which are made a part of the contract, are as follows:

** 30. Payments will be made monthly. A percentage of

ten (10) per centum will be reserved from each payment until completion of the work under contract.

“ 31. The contractor will be required to commence work under this contract at Sabine Pass, Texas, within 60 days after the date of notification of approval of the contract by the Chief of Engineers, U. S. Army; to prosecute said work with faithfulness and energy, and to complete it within ten months after the date of commencement. Work at Calcasieu Pass, La., may be carried on at the same time as at Sabine Pass. Texas, but must be commenced as soon as work at Sabine Pass, Texas, has been completed, prosecuted with faithfulness and energy, and completed within ten months after the date of commencement.

It appears that the contractor entered upon the work at Sabine Pass, Texas, pursuant to the terms of the contract, and that on November 9, 1903, the time specified in the contract for the completion of the work at that point was waived by authority of the Chief of Engineers, and that said work was not completed until September 12, 1904. Upon the completion of the work at Sabine Pass, the contractor immediately moved his plant to Calcasieu Pass, Louisiana, and commenced work at the latter point on September 15, 1904, and, according to the letter of the engineer officer in charge, he is now prosecuting said work with faithfulness and energy. All extra cost for inspection and superintendence occasioned by the extension of time in wbich to complete the work at Sabine Pass were deducted from payments made for said work. There was also deducted 10 per centum retained percentage, as provided for in section 30, supra, of the specifications, the sum thus retained amounting to $9,000.

The work at Sabine Pass having been completed and accepted, you request my decision as to whether said sum of $9,000 may be paid to the contractor without waiting until completion of the work now in progress at Calcasieu Pass, Louisiana.

Section 30, supra, provides that said reserved percentage shall be retained “until completion of the work under contract.” In view of this provision payment of the $9,000 in question prior to the completion of all the work provided for in the contract can be made, if at all, only upon the theory that the transaction between the parties constituted a separable and not an entire contract.

Whether a contract is entire or separable depends upon the intention of the parties, and this must be discovered in each

case by considering the language employed and the subjectmatter of the contract. (Parsons on Contracts, vol. 2, p. 29.)

Applying the above rule of construction to the present case, I am of the opinion that the contract should be regarded as entire and not separable.

The mere fact that the work contracted for was located at different points is not sufficient to justify a finding that the contract was a separable one. It was a single undertaking to do a specified work at the two different places for a specified consideration which applies to all the work at both places. (See 5 Comp. Dec., 212; 82 Pa. St., 267.)

I therefore have to advise you that you are not authorized to pay the contractor the $9,000 in question until the completion of all the work provided for in the contract, which would include the work at Calcasieu Pass as well as that at Sabine Pass.

The question whether the contractor is at the present time in default on the second part of the work at Calcasieu Pass not having been presented, no opinion is expressed thereon.

FEES OF CLERKS OF COURTS. A clerk of court is not entitled to folio fees for making calendars for the

judge, attorney, and clerk, such services being covered by docket fees. A clerk of court is not entitled to fees for filing papers sent up by com

missioners in Chinese-exclusion cases, wherein no appeals were taken, they not being records of the court, and the rule of court requiring

papers in criminal cases only. A clerk of court is not entitled to fees from the Government for filing

papers sent up by commissioners on appeal, in Chinese-exclusion cases,

they being defendants' costs. A clerk of court is entitled to a docket fee of one dollar in cases transmitted

from the district to the circuit court for trial.

(Decision by Comptroller Tracewell, December 27, 1904.)

These are revisions on my own motion (par. 1, sec. 8, act of July 31, 1894, 28 Stat., 207), filed November 16, 1904, of the accounts of George W. Sproule, clerk of the United States circuit and district courts for the district of Montana, for the quarters ending December 31, 1903, in both courts, and March 31 and June 30, 1904, in the district court, settled by the Auditor for the State and other Departments per certificates Nos. 98991 and 98990, dated February 19, 190+; 101794, dated June 8, 1904; and 103874, dated October 4, 1904, respectively.

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