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only mention this payment by the International Banking Corporation in order that the Secretary of State may have his attention directed thereto, and that no injustice may finally be done The Bank in case it is legally ascertained that such interest belonged to the bankers' commission or to China.
EXPENSE OF SUBSISTING CHINESE PRISONERS.
The expense of subsisting a Chinese prisoner during the time when the
order for his deportation is suspended, either pending an appeal to the district court or by an order of a commissioner granting a stay of execution, is properly payable from the appropriation for the Department of Justice and not from the appropriation for the enforcement of the Chinese exclusion laws.
(Decision by Comptroller Tracewell, December 6, 1904.) J. H. Shine, United States marshal, northern district of California, appeals from the action of the Auditor for the State and other Departments in the settlement of his account, support of prisoners, July 1, 1903, to March 31, 1904, on the following items 1 and 3: Charges for subsistence of two Chinese prisoners, pending an order of the United States commissioner staying order of deportation in the one case, and in the other where appeal had been taken by the Chinaman and the order of deportation was suspended pending the hearing of an appeal to the district court. The appeal was afterwards decided adversely to the Chinaman by the district court and the marshal was ordered to execute the order of deportation originally issued by the commissioner.
The two cases do not differ in principle.
The question at issue is out of which appropriation, viz, the judicial or the enforcement of the Chinese exclusion act, should these expenses be properly paid in the one case from October 12, 1903, to January 11, 1904, and in the other from November 12, 1903, to February 4, 1904.
Where two appropriations are used in the enforcement of an act it is sometimes a matter of the greatest difficulty to tell exactly when the one ceases and the other commences.
I am of opinion that the general rule laid down in 5 Comp. Dec., 47, that the expenses of deporting Chinese persons who have been convicted of being unlawfully in the United States,
which accrue after the order for deportation has been delivered to the marshal, are payable from the appropriation for the enforcement of the Chinese exclusion act, states the correct general rule. It follows from the rule that the expenses that accrue prior to the time when the writ is ready for execution must be borne by the judiciary appropriation.
In the case of Quong Chin the order of deportation was issued on October 12, but its execution was stayed by the commissioner until January 11 next. Under such circumstances the order of deportation in so far as its execution is concerned is the same to the marshal as though no such order had been issued. Therefore the expense of keeping this Chinaman in jail should be borne by the judiciary appropriation during the period in question.
In the case of Lin Lung Wong the commissioner also allowed a stay of the execution of the order of deportation until after a hearing of an appeal in the district court. The expense of keeping such Chinaman until the court ordered the execution of the writ of deportation originally issued by the commissioner should also be borne by the judiciary appropriation.
These orders practically vacated or at least suspended the execution of the orders of deportation. While suspended they were as if never made.
LIABILITY OF A CONTRACTOR FOR COST OF
SUPERINTENDENCE AND INSPECTION.
Where a contract provided that if the contractor failed to complete the
work within the time therein specified the United States should have the right to annul the contract and complete the work and recover from the contractor whatever sums it should expend in excess of the contract price for completing the work, and also the additional cost of inspection and superintendence occasioned by default of the contractor, the contractor will not be liable, upon the annulment of his contract and reletting of the work to another party, for the cost of inspection and superintendence under the second contract, where it is shown that the total cost to the Government of work done by the original contractor and under the second contract, including the cost of inspection and superintendence under the second contract, aggregate a less sum 'than the United States had agreed to pay the original contractor for the work.
(Assistant Comptroller Mitchell to the Secretary of War, De
cember 7, 1904.) By your authority dated November 17, 1904, I have received by reference of the Chief of Engineers of the Army, a communication dated November 10, 1904, from Lieut. Col. R. S. Hoxie, of the Corps of Engineers, as follows:
"I bave the honor to submit herewith voucher, in duplicate, amounting to $3,312.79, covering account of John L. Mills, of Camden, N. J., for dredging Susquehanna River above and below Havre de Grace, Md., with request for decision as to whether pay ment shall be made therefor.
“The contract under which Mr. Mills worked is dated July 30, 1903 (Engineer Department file mark 47341), and was annulled in accordance with the authority of the Chief of Engineers and under paragraph 4 of the contract. This anthority also called for the readvertisement of the work, which was done, and a new contract dated April 27, 1904 (Engineer Department file mark 50190), was entered into with the Maryland Dredging and Contracting Company, of this city (Baltimore), at 14. cents per cubic yard and 40 cents per day for board and room furnished inspectors.
"A copy of letter dated October 4, 1904, from Contractor Mills is inclosed, requesting payment for work done by him. The cost of the work to the United States at the new contract price of 14.+ cents has resulted in a saving of $931.34, as is shown by the following statement:
"The Maryland Dredging and Contracting Company. completed this work, removing 81,667 cubic yards of material, at 14.4 cents per cubic yard, $12, 192.05. The cost of removing this amount under the contract with John L. Mills at 15.5 cents per cubic yard would have been $13,123.39, making a saving to the United States of $931.34.
In addition to the amount deducted in the vouchers here. with ($490.76) the following expenditures were made, which are not included in the statement of the account on the vouchers because, in my opinion, they are not properly chargeable to the original contractor:
1904. Mar. 31. Paid George L. Ebberts, messenger in office, one month services
$50.00 May 10. Paid the Cushing Company for stationery for office... 17. 63 May 23. Paid the Western Union Telegraph Co. for telegraphing. ..20 May 30. Paid George L. Ebberts, messenger in office, one month services..
50.00 Aug. 19. Paid F. Weber & Co. for drafting supplies for office
3. 80 Aug. 1. Paid part of steam tender Sentinel's crew for July, 1904, examination of river .
163. 33 Sept. 1. Paid part of steam tender Sentinel's crew for August, 1904, examination of river
The facts in this case are understood to be as follows:
On the 13th day of July, 1903, Capt. J. C. Sanford, Corps of Engineers, for and on behalf of the United States of the first part, and John L. Mills, of Camden, N. J., of the second part, entered into a written contract whereby said parties, in conformity with the advertisement and specifications attached to said contract as a part thereof, covenanted and agreed with each other, so far as the question here presented is involved, as follows:
“John L. Mills shall furnish all the plant, appliances, materials, and labor and shall in all respects carry out and comply with the said specitications, hereto attached, dated June 13, 1903, for dredging Susquehanna River above and below Havre de Grace, Maryland, and that in consideration thereof the said John L. Mills shall receive in full payment the sum of fifteen and one-half (154) cents for each and every cubic yard, scow measurement, of material dredged and redeposited. For board and room for the inspector, when required and furnished, at the rate of one dollar ($1.00) per day.
"3. The said party of the second part shall commence, prosecute, and complete the work herein contracted for as set forth in paragraph 31 of the attached specifications."
Paragraph 31 of the specifications is as follows:
“The contractor will be required to commence work under the contract within 15 days after the date of notification of approval of the contract by the Chief of Engineers, C. S. Army, to prosecute the said work with faithfulness and energy, and to complete it within four calendar months after the date of notitication of approval of contract."
Paragraph 4 of the contract is as follows:
“t. If, in any event, the party of the second part shall delay or fail to commence with the delivery of the material
the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then, in either case, the party of the first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party (or parties, or either of them) of the second part, and upon the giving of such notice all payments to the party or parties of the second part under this contract shall cease, and all money or reserved percentage due or to become due the said party or parties of the second part, by reason of this contract, shall be retained by the party of the first part until the tipal completion and accept
ance of the work herein stipulated to be done; and the United States shall have the right to recover from the party of the second part whatever sums may be expended by the party of the first part in completing the said contract in excess of the price herein stipulated to be paid the party of the second part for completing the same, and also all costs of inspection and superintendence incurred by the said United States, in excess of those payable by the said United States during the period herein allowed for the completion of the contract by the party of the second part; and the party of the first part may deduct all the above-mentioned sums out of or from the money or reserved percentage retained as aforesaid; and upon the giving of the said notice the party of the first part shall be authorized to proceed to secure the performance of the work or delivery of the materials, by contract or otherwise in accordance with law.”
It appears that Mills, under said contract, dredged and redeposited 24,539 cubic yards of material, which, if paid for at 154 cents per cubic yard, amounts to the sum of $3,803.55. That, having failed to complete the work, the contract, by proper authority and in accordance with the terms thereof, was taken from him, and, after readvertising, let to the Maryland Dredging and Contracting Company, of Baltimore, Md., at 1410 cents per cubic yard, and 40 cents per day for board and room furnished inspectors.
It is understood that Mills has not been paid for any part of the work done by him.
Cubic yards. Mills under his contract dredged and redeposited material... 24, 539 The Maryland Dredging and Contracting Company under its contract dredged and redeposited ...
84, 667 Total
109, 206 Under the Mills contract the above work, 109,206 cubic yards, at 154 cents, would have cost the United States $16.926.93.
If Mills is paid for his work at the contract price the entire work will have cost the Cnited States as follows: Brought forward.....
$16, 926.93 24,539 (ubic yards, at 15 cents, under Mills contract...
$3, 803. 55 84,667 cubic yards, at 14 t, cents, under second contract..
12, 192. 05 Cost of advertising and reletting second contract... 71. 66 Cost of additional inspection and superintendence of work under second contract..
419. 10 Total
16, 486. 36