Reporter's Statement of the Case

Moeller (C. E. C.), U. S. N.; Lieut. C. W. Coryell (C. E. C.), U. S. N., recorder.

Under contract 3044 the board consisted of Lieut. A. Praeger (C. E. C.), U. S. N., senior member; Lieut. L. N. Moeller (C E. C.), U. S. N., machinist; and C. C. Simpson, U. S. N. R. F., recorder.

The purpose of the boards was to determine the change in contract price by reason of the fact that the contractors were not able to start work on the contracts at the time of the delivery of the contracts.

The boards investigated the detailed claims prepared by the contractors and by the officer in charge under each of the contracts, and on March 25, 1919, the board appointed under contract 2909 submitted its report and recommended that said contract 2909 be increased $1,350. On April 25, 1919, the board appointed under contract 3044 submitted its report and recommended that said contract be increased in the sum of $204.67 for work performed by the contractors which was later lost to the Government by reason of the change in plot plan. The board also recommended that the contractors be allowed $2,166.61 for expenses incurred on account of being idle through no fault of their own, the total amount recommended being $2,371.28. The sum of $204.67, representing pay for extra work performed, was paid to plaintiffs before the filing of this suit.

These reports were in each case approved by the publicworks officer, but they were not approved by the Bureau of Yards and Docks, for the reason that the amounts recommended, except the sum of $204.67 for extra work, partook of the nature of unliquidated damages.

The boards appointed to ascertain the increased costs of the work due to the suspension and change of the plot plan were in position to observe, check, and know at first hand the cost of the work as done by the contractors as compared with the estimated cost of the work as originally planned.

The court decided that plaintiffs were not entitled to

recover.

Syllabus

CAMPBELL, Chief Justice, delivered the opinion of the

court:

In this case the plaintiffs sue to recover certain items of cost alleged to have been occasioned by the temporary suspension of the work contracted to be done, the suspension being caused by the Government's action. There were two contracts involving buildings at San Diego, Calif., the work complete under them calling for expenditures in excess of a half million dollars. The contracts were performed and the entire consideration provided in them has been paid. The amount now claimed is approximately $3,600. The alleged suspensions were caused by some changes made in the plans. For the periods of delay the plaintiffs were accorded additional time, and no liquidated damages were assessed against them. In each of the contracts the Government reserved the right to make changes in "the contract, plans and specifications," and a method of ascertaining the cost incident thereto is agreed upon. Extensions of time are provided for. The contracts have provisions identical with the contract referred to in the Crook case, 59 C. Cls. 593; 270 U. S. 4. It is unnecessary to repeat here what is said in the case of the same plaintiffs in this court, ante, p. 666, decided this day, but which is applicable in the instant case. The construction given the terms of the contracts by the Supreme Court are controlling. The petition should be dismissed. And it is so ordered.

GRAHAM, Judge; HAY, Judge; DOWNEY, Judge; and BOOTH, Judge, concur.

CHARLES A. CRAIG v. THE UNITED STATES

[No. D-11. Decided February 15, 1926]

On the Proofs

Marine Corps Pay; sec. 1612, R. S.; Officers' Training Camps.-Marine Corps officers' training camps were put in operation for training members of the Marine Corps only and were not established under the act of August 29, 1916. An enlisted man

Reporter's Statement of the Case

of the Marine Corps in attending them in 1918, was not, under sec. 1612, R. S., entitled to the same pay provided by the act of June 15, 1917, for enlisted men of the Army when in training for officers of the Reserve Corps.

The Reporter's statement of the case:

Mr. George A. King for the plaintiff. Mr. Cornelius H. Bull and King & King were on the briefs.

Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.

The court made special findings of fact, as follows:

I. Charles Austin Craig enlisted in the Marine Corps July 17, 1917, at Parris Island, S. C. He was transferred to Santo Domingo, Dominican Republic, September 30, 1917, and joined the One hundred and fifteenth Company at that place October 12, 1917. He was appointed a corporal on November 1, 1917. He was transferred April 19, 1918 to the United States and joined Company D, officers' training camp, Quantico, Va., May 16, 1918, and was discharged from the Marine Corps and the officers' training camp August 14, 1918, to accept an appointment as second lieutenant (provisional) in class 4, Marine Corps Reserve. He accepted this appointment August 15, 1918, and was immediately assigned to active duty at the Marine Barracks, Quantico, Va. He was disenrolled from the Marine Corps Reserve September 12, 1918, to accept a temporary appointment in the Marine Corps as second lieutenant, and accepted the same September 13, 1918. He was temporarily promoted a first lieutenant March 5, 1918, with rank from August 16, 1918, and was honorably discharged from the Marine Corps August 11, 1919, effective August 18, 1919.

II. The Major General Commandant of the Marine Corps in a circular letter dated February 19, 1918, approved by the Secretary of the Navy, on the subject of Marine Corps officers' training camps, required commanding officers at each post to appoint a board of three officers to select not more than 5 per cent of the enlisted strength at the posts for attendance at the training camps. Paragraph 3 of said circular letter is as follows:

Reporter's Statement of the Case

"3. The following requirements will obtain before a man is eligible for designation:

"(a) He must be a citizen of the United States. Full directions as to the necessary proof of citizenship are given in inclosure (a).

“(b) A careful investigation will be made in the cases of men who were born in enemy countries or who have family connections in these countries. This class of men will be recommended only in exceptional cases.

"(c) While no scholastic examination will be required, it is undesirable to order a man to the school who manifestly has not the necessary mental qualifications to pass the prescribed course. An outline of the contemplated course is inclosed herewith-inclosure (b).

66

"(d) The requirement of one year's enlisted service is waived, but a man must have completed the prescribed course of recruit training or its equivalent.

"(e) Either privates or noncommissioned officers are eligible. A man will not be recommended simply on account of his rank or length of service. The special attention of commanding officers is invited to the fact that a great many of the men selected will eventually become junior company officers, and it is especially desirable that only active men of good education who have the necessary qualifications for an officer be selected.

66

(f) The records of men under consideration will be most carefully scrutinized, particular attention being given to a man's conduct both in current and former enlistments. Where a doubt exists as to conduct during previous enlistments, detailed information can be secured from these headquarters by telegraph.

"(g) The candidate must be over 20 and under 35 years of age on the date of appointment as a commissioned officer. This date will be approximately three months from the date. of opening of the camp, to be decided upon later. No candidate will be selected who can not qualify under these requirements.

(h) Members of the National Naval Volunteers (Marine Corps Branch) and Marine Corps Reserve (who have volunteered for general service) are eligible.

66

(2) The physical requirements are the same as outlined in Paragraph III of inclosure (c). Before a man is transferred the commanding officer will have him examined by the medical officer of the post in order to determine his physical fitness."

Opinion of the Court

When the boards of officers had made their selections and the selections had been approved by the commanding officers at the respective posts, transfers of the assigned quota were made from the top of the lists to the officers' training camps.

III. During the period from May 16 to August 14, 1918, the plaintiff received the pay of a corporal, United States Marine Corps, namely, $36 per month, increased by $3 per month on account of sharpshooter qualifications, or $39 per month. Should the plaintiff be found entitled to the difference between $100 per month from May 16, 1918, to June 30, 1918, and the pay of his grade, $36 per month, received by him, there would be due him $96. Should he be found entitled to the difference between $100 per month from May 16, 1918, to June 30, 1918, and the pay of his grade plus $3 per month, or $39 per month, received by him, there would be due him $91.50.

The court decided that plaintiff was not entitled to recover.

HAY, Judge, delivered the opinion of the court:

The plaintiff, an enlisted man in the United States Marine Corps, attended a Marine Corps officers' training camp at Quantico, Va., from May 16, 1918, to August 14, 1918, during which time he received $36 per month, the pay of his grade as corporal, and $3 a month as a sharpshooter. He claims the difference between $100 a month appropriated by the act of June 15, 1917, 40 Stat. 188, for enlisted men of the Army during the fiscal year 1918, when in training for officers of the Reserve Corps and the $36 received by him. He bases his claim on section 1612, Revised Statutes, which provides as follows: "The officers of the Marine Corps shall be entitled to receive the same pay and allowances, and the enlisted men shall be entitled to receive the same pay and bounty for reenlisting, as are or may be provided by or in pursuance of law for the officers and enlisted men of like grades in the Infantry of the Army."

The plaintiff also cites the act of August 29, 1916, 39 Stat. 614. This act authorizes the Secretary of the Navy to establish and maintain at such places as he may designate Marine Corps training camps for the instruction of