these repairs to the fiscal year 1904, as the facts in this case differentiate it from the cases holding that such apportionment would be proper; that the appropriation for the fiscal year 1905 is the proper appropriation out of which these repairs should be paid, in so far as you have an unexpended balance, and that for any deficit a deficiency appropriation should be asked for to supply the deficiencies for the fiscal year 1905.

REIMBURSEMENT OF A MARSHAL FOR TRAVELING EXPENSES.

A marshal traveling on official business who was unavoidably detained for three days at New Orleans, La., waiting to secure a berth in a sleeping car which would take him to his official station at Los Angeles, Cal., is entitled to reimbursement of expenses for board and lodging while so detained.

(Decision by Comptroller Tracewell, November 12, 1904.)

H. Z. Osborne, United States marshal, southern district of California, appeals from the action of the Auditor for the State and other Departments in the settlement of his accounts for March quarter, 1904, in disallowing in his said account charges for room, $7.50, and meals, $3.50, on January 17, 18, 19, 1904, while detained at New Orleans waiting to secure a berth in a sleeping car which would take him to his official station at Los Angeles, Cal.

Concerning these charges the marshal submits an affidavit, dated November 2, 1904, which reads:

"DEPARTMENT OF JUSTICE,

"OFFICE OF UNITED STATES MARSHAL,
"SOUTHERN DISTRICT OF CALIFORNIA,
"Los Angeles, November 2, 1904.

"The COMPTROLLER OF THE TREASURY,

Washington, D. C.

"SIR: In the matter of my account under the appropriation for 'Salaries, fees, and expenses of marshals of United States courts' for the quarter ended March 31, 1904, the honorable Auditor for the State and other Departments made disallowances of following items of expense, to wit:

Charge for room at New Orleans, January 17, 18, 19, 1904...
Meals had at New Orleans on same days..

Total

$7.50

3.50

11.00

"(See Auditor's statement of suspensions, judicial, No. 102887; see Auditor's statement of suspensions, judicial, No. 103827.)

"I respectfully ask that this action of the Auditor be revised, and that you reinstate said charges so disallowed.

"The undisputed facts are that after delivery by me of a prisoner to the custody of the United States marshal at Memphis, Tenn., under an order of removal from my district, I returned to Los Angeles via New Orleans, that being the best route, selected by me before departure from Los Angeles, and over which I purchased a round-trip ticket at Los Angeles; that on said return trip I arrived in New Orleans on the night of January 16, 1904. Other facts which I now state and make oath to are, that on the early morning of January 17, 1904, I applied for sleeping accommodations on the train leaving that day, 11.50 a. m., and being informed that all berths were engaged and that the first berth I could reserve would be by train leaving January 20, 1904, I engaged a berth on said train January 20, and further requested that if any reservation of berth on train earlier than that date be canceled, that same be re-reserved for me; that on inquiry, each day found that no berths so engaged could be had; that in consequence I was compelled to wait and take berth on train of January 20, 1904. This seeming unnecessary delay at New Orleans is cause of said disallowances, and which was unavoidable, as seen from the facts above.

"H. Z. OSBORNE, "United States Marshal.

"Subscribed and sworn to before me, November 2, A. D.

1904.

"H. OWEN,

"Clerk United States District Court,
"Southern District of California."

The Auditor, in support of his disallowance, reports as follows:

"Herewith is returned appeal No. 10783, being the request of H. Z. Osborne, United States marshal for the southern district of California, for a revision of the action of this office in disallowing certain items in his accounts, adjusted per certificates Nos. 102887 and 103827.

"In traveling via New Orleans from Memphis, Tenn., to his official station at Los Angeles, the marshal arrived at the first-named city on January 16. On the following morning he applied for berth in sleeping car to Los Angeles, but was unable to secure such berth until January 20. He charged in his account his expenses of lodging and subsistence in New Orleans from January 17 to 20, which expenses were disal

lowed by this office as not being chargeable to the United States.

"The marshal should have reserved sleeping-car accommodations from Memphis to Los Angeles, or, if this course was impracticable, he should have telegraphed to New Orleans for such reservation, it being proper to add that the latter service is ordinarily rendered without charge to the passenger by the agent of the railroad over which the travel is made. The marshal having failed to observe this precaution, this office holds that the consequent expenses of delay in New Orleans were not necessarily incurred, and therefore should be borne by him, not by the United States."

The sole question presented by this appeal is, Was three days' delay at New Orleans, waiting to secure a berth in a sleeping car, under the circumstances disclosed, an ordinary delay incident to modern travel and to be considered as part of the travel period? By the exercise of common and ordinary prudence could or would this delay have been avoided?

The trip in question would occupy several days and nights. The marshal was entitled to make this trip with the ordinary comforts and conveniences of modern sleeping-car accommodations.

It appears from his statements that from some cause there was a heavy demand on the Pullman car service over the line over which he had purchased a round-trip ticket from New Orleans to Los Angeles, and that he was compelled to wait the three days in question in order to secure a berth.

It is suggested by the Auditor that if he had telegraphed from Memphis a berth could have been secured at New Orleans without delay.

This may or may not be true. I only know that on the morning of the 17th of January, 1904, after the marshal had arrived at New Orleans from Memphis, on the night before, he made application for a berth and was not able to secure one until the morning of the 20th. When the berths had been taken by others, covering these days, is not disclosed. It may have been possible for the marshal to have taken a day car and ridden in it during the day and taken the chances that some one occupying a berth would vacate it at some intermediate point, but I am inclined to think that he was not compelled to take such risks, when. within a period of three days, he could, as he did, secure a berth.

Under all the circumstances of this case, I am of opinion

that a delay of three day was not unreasonable, and that it was not his duty to do more than other people usually do in securing a Pullman berth, by making inquiry for same at the ticket office.

If he had incurred expense in telegraphing from Memphis to New Orleans, under ordinary circumstances this item would have been disallowed in his account, yet circumstances as to travel may have been such as to justify such an expense. He had purchased a round-trip ticket, which left him no choice of routes. What is diligence in a given case is a question that must be judged of by the facts surrounding the person at the time and not by what a person would do after he is in possession of facts which, if known at the time, would or should have caused him to act differently. The marshal had a ticket over a certain route. He was unable, on inquiry some time before the departure of his train, to secure sleepingcar berth, and his journey would occupy several days and nights. He could procure such accommodations on the third day after the request for a berth. He waited. If this had been a short trip it would present a different question. But considering the length of the trip and the efforts the marshal made to secure a berth, I do not feel at liberty to hold that three days, under such circumstances, are not properly a part of the travel period.

This case shows that the purchase of round-trip tickets do not always inure to the benefit of the Government.

The action of the Auditor is reversed.

REFUNDMENT OF BOUNTY BY APPRENTICES IN THE NAVY.

The provision in the act of March 1, 1889, for the payment of bounty to apprentices in the Navy did not contemplate the refundment of any part thereof by an apprentice upon his subsequent discharge from the service, and therefore so much of article 1395, Navy Regulations of 1900, as amended by General Orders, No. 52, of 1901, as provides for such refundment is void because inconsistent with the terms of said act.

(Decision by Assistant Comptroller Mitchell, November 17, 1904.)

T. J. Cowie, pay inspector, U. S. Navy, appealed July 2, 1904, from the action of the Auditor for the Navy Depart28007-Vol. 11-05-13

ment in the final settlement, dated June 9, 1904, of his accounts for the first and second quarters, 1902, as pay officer of the U. S. S. Constellation.

He objects to the disallowances by the Auditor, stated as follows:

Constellation, No. 1, 1902.

To amount of cash paid the following apprentices at date of discharge disallowed, as same should have been checked to the credit of "Outfits for apprentices:"