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thoroughly cleansed, in order to protect the patients in every way possible. We feel that the safest method when giving such an order is to provide these gowns and other equipment that goes with them, as only in this way can we assure every safeguard for the protection of our patients from consequences that might ensue following an operation. These gowns and caps are the property of the hospital and will remain the property of the hospital, to be placed in stock for use by the various members of the staff and other employees as may be required in line of duty. In no case are any of these articles to become the property of any individual. This course, as stated, is being pursued in the various hospitals throughout the country, and we have no doubt but that it is the proper method to be followed here, except for the decisions that have been made by the Comptroller General of the United States from time to time as to the authority to furnish personal wearing apparel for the various branches of the Government to the employees.
The act of May 24, 1922, 42 Stat., 592, making appropriations for the Department of the Interior for the fiscal year ending June 30, 1923, provides as follows:
For support, clothing and treatment in Saint Elizabeths Hospital for the Insane from the Army, Navy, Marine Corps, Coast Guard, inmates of the National Home for Disabled Volunteer Soldiers, persons charged with or convicted of crimes against the United States who are insane, all persons who have become insane since their entry into the military and naval service of the United States, civilians in the quartermaster's service of the Army, persons transferred from the Canal Zone, who have been admitted to the hospital and who are indigent * $1,000,000
Furnishings—wearing apparel, firearms, ammunition, etc.—are not authorized to be purchased and charged under contingent or other appropriations in the absence of specific provision therefor contained in such appropriations or other acts, if such furnishings are for the personal convenience, comfort, or protection of such employees, or are such as to be reasonably required as a part of the usual and necessary equipment for the work on which they are engaged or for which they are employed, including uniforms and other equipment required to be worn or used for the purposes of identification, etc. 12 Comp. Dec., 616; 17 id., 508; 24 id., 44; 1 Comp. Gen., 251; 2 Comp. Gen., 258–493; decision of February 5, 1923, 18 MS. Comp. Gen., 151. The exceptions to this the almost invariable application as to such matters are not such as to readily lend themselves to specific enumeration. Generally, if such furnishings are made necessary by the unusual requirements of particular field or office work, they are allowed, and likewise if they partake of the character of “ tools of the trade,” as the matter is sometimes expressed, 2 Comp. Gen., 382, but when such exceptional purchases are made the vouchers in payment thereof must fully set forth the reasons and the necessities therefor.
The requirements as to the gowns and caps here in question, stated to be essentially for the protection of the patients, appear properly to bring them within the class of excepted items of furnishings, being, in effect, a part of the hospital equipment, and the decision is accordingly.
MILEAGE-CADETS OF THE UNITED STATES MILITARY ACADEMY.
Cadets proceeding from their homes to the Military Academy for examination
and appointment on and after July 1, 1922, are entitled to five cents per mile for the entire distance from their homes to the Academy via the shortest usually traveled route, less any cost to the Government for sub
sistence or transportation furnished. Comptroller General McCarl to the Secretary of War, April 13, 1923:
I have your letter of March 15, 1923, transmitting voucher in favor of Samuel Mana Fuller, cadet private, class of new cadets, United States Military Academy, for mileage at the rate of 5 cents per mile, Honolulu, Hawaii, to West Point, N. Y., for travel to enter the Military Academy, and requesting decision as to the amount which should be allowed per mile for that part of the travel by Army transport from Honolulu, Hawaii, to San Francisco, Calif.
On the face of the voucher it is stated that the journey was commenced July 20, 1922, and completed August 3, 1922, while the “mileage statement " on the reverse of the voucher is “1922, July 20 to August 3, Honolulu, H. T., to San Francisco, Cal., U. S. A. Transport Chateau Thierry charged for meals only on transport. 20 meals, @ $0.50, $10.00.” Whether the journey to San Francisco or to West Point was completed August 3, 1922, does not definitely appear.
Section 19 of the act of June 10, 1922, 42 Stat., 632, provides: That cadets at the Military Academy and cadets and cadet engineers of the Coast Guard shall receive the same pay and allowances as are now or may hereafter be provided by law for midshipmen in the Navy.
Under the appropriation “ Pay, miscellaneous, 1923," in the naval appropriation act of July 1, 1922, 42 Stat., 787, funds are provided :
for mileage, at 5 cents per mile, to midshipmen entering the Naval Academy while proceeding from their homes to the Naval Academy for exami. nation and appointment as midshipmen;
As under section 19 of the act of June 10, 1922, cadets who have entered the Military Academy become entitled for said entrance travel on and after July 1, 1922, to the same allowance as then or thereafter provided for midshipmen in the Navy, in order to determine the right of Cadet Fuller to mileage for this travel on and after July 1, 1922, to enter the Military Academy, it is first necessary to determine what a naval cadet who has entered the Naval Academy would have been entitled to for similar travel on and after July 1, 1922, to enter the Naval Academy.
While naval cadets are officers of the Navy, and there is in section 12 of the act of June 10, 1922, 42 Stat., 631, a general mileage provision (with actual expenses for certain sea travel) for officers of the Navy, yet in view of the statutory distinction as to this allowance that maintained prior to July 1, 1922, between the travel of
naval cadets for such entrance purposes and that of commissioned officers of the Navy for general travel purposes, and the repetition of this distinction in the annual naval appropriation act for 1923, supra, enacted July 1, 1922, and therefore at a later date than the act of June 10, 1922, although effective upon the same date, it is concluded that it was the purpose of Congress to continue this separation of naval cadets from commissioned officers of the Navy for mileage for entrance travel purposes. See, in this connection, United States v. Perkins, 116 U. S., 483; 20 Comp. Dec., 365.
Cadet Fuller is accordingly entitled to mileage via the shortest usually traveled route from Honolulu to West Point, computed at 5 cents per mile for entire distance, less any cost to the Government for subsistence and transportation while en route on Army transport from Honolulu to San Francisco, as a set-off against the item of mileage which the Government otherwise owes him.
It appears from the voucher submitted that he has himself borne the cost of said subsistence, 20 meals at $0.50 each, $10, and, if this be verified as correct, he is not indebted to the United States on this account, nor is he entitled to reimbursement therefor as claimed.
The only remaining item is the independent item of transportation from Honolulu to San Francisco, and the only question for determination as to that is as to the amount that shall be deducted therefor as the cost to the United States for the transportation from the mileage which it otherwise owes him.
The Quartermaster General of the Army computes the cost of individual passenger transportation on Army transports, and information as to the monetary value of the transportation furnished to Cadet Fuller for said travel as a cadet candidate from Honolulu to San Francisco on the Army transport upon which he traveled can be secured from that office.
You are accordingly advised that for this cadet entrance travel from Honolulu to San Francisco Cadet Fuller is entitled to mileage at 5 cents per mile, less the cost of the transport transportation furnished to him as thus ascertained. See 2 MS. Comp. Gen., 235, October 20, 1921.
DAMAGES-MISTAKES OF GOVERNMENT OFFICERS AND
A mistake by officers or employees of the Government, resulting in the erro
neous deportation of an alien as exceeding the allowable quota of immi. grants, does not render the United States liable for damages or for the expense of returning the alien to this country upon discovery of the
mistake. Comptroller General McCarl to the Secretary of Labor, April 13, 1923:
By letter dated April 7, 1923, decision is requested whether in the settlement of the accounts of the French Line Steamship Co. for
charges against it for housing immigrants at Ellis Island, credit may be allowed for the amount expended by the relatives of an alien for his return to the United States after he had been erroneously deported through a mistake as to whether the quota had been exceeded.
It appears that after the alien in question had been erroneously deported as in excess of quota and the mistake had been discovered the relatives of the deportee advanced the necessary funds, amounting to $115.55, for his return and now demand that the French Line refund the amount. The French Line appears willing to make the refund provided it can be reimbursed by the United States either directly or by abatement to a corresponding amount of the housing charges against it.
The only theory upon which the steamship company's claim for reimbursement or abatement could be considered would be that the United States is liable for the damage resulting from the mistake of its officers or agents in ordering the deportation of the alien. It is well settled that the torts or mistakes of Government officers or employees can not be made the basis of a claim for damages against the United States. Hart v. United States, 95 U. S., 318; Russell v. United States, 182 U. S., 535.
The question submitted is answered in the negative.
SALES OF OLD AND NEW MATERIAL, PANAMA CANAL.
The failure of the purchaser to inspect before shipment goods sold by the
Panama Canal as new and unused" does not relieve the Canal from furnishing goods of that kind and the substitution of used or second-hand goods entitles the purchaser to refund equal to the difference between the
value of new goods and those delivered. Decision by Comptroller General McCarl, April 13, 1923:
The Seattle Chain & Manufacturing Co. has requested review of settlement W-890109, this office, dated February 28, 1923, disallowing its claim for $69.69, damages as result of defect in chain purchased from The Panama Canal under sales order No. 1624, dated April 17, 1922.
Under said sales order The Panama Canal sold to the Seattle Chain & Manufacturing Co. new and unused chain. This order provided for delivery of the material sold free alongside vessel, Balboa, Canal Zone. Circular No. 1470, on which claimant company submitted its bid, contained the following provision:
The purchaser is requested to have a representative present to inspect the material at time of delivery, as no claims for shortage, quality, condition, or Inaccuracy in description will be considered after delivery.
No representative of claimant inspected the material sold at Balboa as requested. On receipt of material in San Francisco it was discovered that this chain was not new and unused as advertised but *in very bad condition, the material being eaten away to a considerable extent by salt water and in the case of the 1" chain the links were worn to below f" diameter at the ends."
The proceeds of the sale were deposited June 30, 1922, to credit of “ Maintenance and operation, Panama Canal.”
The claim has had administrative examination, and report thereon in part is as follows:
This claim has been investigated and it has been ascertained that the chain shipped on these two items was second-hand chain, instead of new and unused chain. See copy of letter of the chief quartermaster dated August 26, 1922, herewith. It is not believed by the Panama Canal that the chain covered by this claim was the kind of chain which the Panama Canal warranted it to be in making the sale.
The claim has been approved for $67.87 on the following basis: 72 ft. f" defective chain.
-per ft. $0.12_$8. 64 407 " 1" defective chain
. 15__61. 05 Proportionate allowance for freight, wharfage, and State tolls from
Balboa to Seattle on 4,675 lbs. defective chain (total charges, 54,230
42. 66 Proportionate allowance for loading on car and switching charge at
Seattle (total loading and switching charges on entire shipment
-- per ft.
Less deduction for value of 4,675 lbs. defective chain at $1.00
$114. 62 per cwt.
Amount due contractor.
$67. 87 Where a sale is made of an article to be of a certain kind and quality the tender of such an article is a condition precedent to the buyer's liability, and, if the condition is not performed, the buyer may reject the article within a reasonable time. Bower-Venue Grain Co. v. Norman Milling and Grain Co., 207 Pac., 297; Rosenbaum Hardware Co. v. Paxton Lumber Co., 97 S. E., 784. However, this rule generally is applicable only where there is no provision with respect to inspection of the goods sold. Ordinarily a purchaser who having every opportunity allowed him to inspect goods for himself neglects to do so, but takes the goods at the estimate put on them by the seller, can not be relieved by law, and failure to inspect at the time and place agreed upon is equivalent to approval. Fraser v. Ross, 41 Atl., 204; Reynolds v. Palmer, 21 Fed. Rep., 432.
Such is the general liability of a purchaser upon failure to inspect, but it is believed there are situations where a different rule is applicable. In this case, for instance, had the original offer been of material “ in good condition” or other similar provision, the “condition” would be a matter of opinion and purchaser could be afforded