with such regulations will be noted on the pay roll for the next succeeding month and be deducted, if practicable, from his pay by the quartermaster making the payment and turned over to the post exchange officer, who will duly receipt to the quartermaster and the soldier for the amount so received. In case of discharge of a soldier the amount of any such indebtedness will be noted on the final statement, and in like manner be deducted from payment made thereon."

The regulations prescribed by the Secretary of War provide that the credit extended to a soldier by a post exchange in any one month shall not exceed one-third of his monthly pay. (17 Comp. Dec., 992.)

In case of Lesord, a private in the Marine Corps, who deserted in February, 1902, and never returned, at which time there was a credit of $8.96 in his favor for arrears of pay and the debit items were $3.43 due post exchange, 25 cents due laundress, and 50 cents due barber, this office, on April 22, 1902 (21 MS. Comp. Dec., 324), decided as follows:

"There exists an essential distinction between the present case and that which was made the subject of the decision of June 14, 1901. Here all pay accrued at date of desertion was forfeited by desertion, and there was, therefore, no money in the hands of the United States due to Lesord to be disbursed among his creditors. To give the post exchange the benefit of the pay accrued to the extent of its indebtedness it would be necessary to assume that the United States occupied the position of the post exchange, so that upon desertion there might be a balance struck with the deserter and only such pay forfeited as remained due after his indebtedness was deducted. But this position can not be assumed with regard to the post exchange, and much less with regard to the other creditors of the deserter. Although the exchanges are established and maintained under special regulations, the Government does not become responsible for their debts or entitled to their credits. Hence a deserter's indebtedness to the exchange can not be applied to lessen the amount of his forfeiture of pay, as might be the case where the indebtedness is owing directly to the United States."

On June 14, 1902 (8 Comp. Dec., 862), this office concurred in the following opinion of the Judge Advocate General of the Army:

"I am clearly of the opinion that the amount due by a deceased soldier to the post exchange is a debt and constitutes a proper claim against the estate. Moreover, I am of opinion that it should be held that the amount due the post exchange may legally be deducted from the pay and allowances due the estate. It is thought that this would follow from the right of the Government to protect its instrumentality, and for this purpose the debt should be treated as though it were due the United States."

Section 7 of the act of March 3, 1851 (9 Stat., 596), carried into the Revised Statutes as section 4818, provides:

"For the support of the Soldiers' Home the following funds are set apart and are hereby appropriated: All stoppages or fines ad

judged against soldiers by sentence of courts-martial, over and above any amount that may be due for the reimbursement of Government, or of individuals; all forfeitures on account of desertion; and all moneys belonging to the estates of deceased soldiers, which are or may be unclaimed for the period of three years subsequent to the death of such soldiers, to be repaid by the commissioners of the institution, upon the demand of the heirs or legal representatives of the deceased."

In said section 4818 are included the following classes of soldiers on account of whose services funds are derived for the support of the Soldiers' Home:

"1. Soldiers now in service and discharged soldiers who have not been absent, in desertion but who have had stoppages or fines adjudged against them by sentence of courts-martial.

"2. Soldiers now in service and discharged soldiers who have been absent in desertion and who have had or who have not had stoppages or fines or forfeitures adjudged against them by sentence of courtsmartial.

"3. Deserters at large.

"4. Soldiers who have died in the service in whose cases no claim has been presented by an heir or legal representative."

On March 26, 1907, in the case of Kaltenback, of Ninth United States Infantry, who was dishonorably discharged from service April 23, 1906, with forfeiture of all pay and allowances due, per sentence of a general court-martial, and who was charged on company pay roll $2 as due the post exchange, this office decided (13) Comp. Dec., 651) as follows:

"The present case is not one of desertion. The stoppage of pay and allowances arises from the sentence of a general court-martial because of offenses other than desertion, and the provisions of section 4818 of the Revised Statutes relative to stoppages become operative, and such stoppages are exempt from the appropriation therein named to the amount that may be due for the reimbursement of the Government or of individuals. Said exemption does not apply in the case of a forfeiture by desertion. I am of opinion, however, that the right of the post exchange to be paid its indebtedness is not because of its being an instrumentality of the Government so as to bring it within the provisions of said statute relating to reimbursement of the Government. * * It is entitled to be paid its indebtedness against the soldier because it is an individual within the meaning of said exemption in 4818 of the Revised Statutes

*

On February 8, 1913, this office decided, quoting from the syllabus (19 Comp. Dec., 515), that

"Stoppage against the pay of enlisted men of the Army may legally be made to reimburse the post-exchange fund on account of overpayments made in cashing final statements."

In said decision of February 8, 1913, appears the following quotation, with apparent approval, from page 637 of Howland's Digest 2216°-VOL 21-15-8

of Opinions of the Judge Advocate General of the Army, published in 1912:

"Now, the funds of the post exchange are moneys used in carrying on this public agency, and the Government has a right to protect its instrumentalities-the establishments through which it carries on public business. Held, therefore, that stoppages against the pay of officers and enlisted men, whether on the active or retired list, may legally be made to reimburse the post-exchange fund on account of losses for which such officers and enlisted men are responsible; and in case of a deceased officer or soldier, the amount due the post exchange may be deducted from the pay and allowances due the estate of the deceased. As the pay of an officer or soldier or employee may be stopped to pay an indebtedness due the United States, it may with equal legality and propriety be stopped to pay an indebtedness due to a Government agency or instrumentality which has been established by proper legislative or executive authority."

* *

*

The substance of the above-quoted decision is published in the Manual for the Pay Department of the Army (edition of 1910) as paragraphs 944, 965, and 966, worded in part as follows:

"944. * * It is the duty of a soldier who has been given credit at a post exchange, not exceeding in any month one-third of his monthly pay, to pay the amount as soon as he receives his pay, and the exchange officer will be present at the place of payment to receive the money or make such arrangements as will facilitate the payment. Credit will not ordinarily be extended to a soldier between the date of last payment on rolls before discharge and the date of discharge. When the debt has remained unpaid one pay day on which the soldier was paid a balance sufficient to discharge such debt and no other means of collection is practicable, the exchange will notify the company or detachment commander, who will note the amount on the next pay roll as 'Due post exchange

66

*

*

-,' and

on succeeding rolls until the debt has been collected." "965. The indebtedness of a soldier to a post exchange is not payable from pay forfeited by his desertion. But may be deducted from pay forfeited by sentence of a general court-martial because of offenses other than desertion.

"966. Debts due company funds by a deserter can not be deducted from balance of pay and allowances forfeited by desertion."

The decisions of this office to the effect that debts due company funds and a post exchange by a deserter can not be deducted from the unpaid pay and allowances earned by the soldier up to date of his desertion arose from an erroneous interpretation of the phrase "all forfeitures on account of desertion," which appears in section 4818 of the Revised Statutes. What are forfeitures on account of desertion"? The correct answer to this question may be obtained by a careful reading of paragraphs 1358, 1360, 1363, and 1364, Army Regulations of 1863, which were revognized and continued in force

by Congress in section 37 of the act of July 28, 1866. (14 Stat., 337.)
Said paragraphs are worded in part as follows:

"1358. Every deserter shall forfeit all pay and allowances due at
the time of desertion

** * * 99

"1360. In case of a soldier's death, desertion, or discharge without
pay, or the forfeiture of his pay by sentence of court-martial, the
amount due the laundress and sutler will be noted on the muster
roll."

"1363. Authorized stoppages to reimburse the United States, as
for loss or damage to arms, equipments, or other public property;
for extra issues of clothing;
or to reimburse individuals
(as the paymaster, laundress, etc.); forfeitures for desertion, and
fines by sentence of court-martial, will be entered on the roll and paid
in the order stated.

men

* * *

"1364. The paymaster will deduct from the pay of all enlisted and also the amount of the authorized stoppages entered on the muster roll, descriptive list, or certificate of discharge."

It will be observed that the forfeiture at time of desertion is not all unpaid pay and allowances that has been earned by the soldier, but is "all pay and allowances due at the time of desertion." This regulation has had an uninterrupted existence, which began many years prior to March 3, 1851 (the date of the law carried into the Revised Statutes as sec. 4818), and has extended up to this day. The decisions of the Supreme Court in cases of Landers (92 U. S., 77) and Kingsley (138 U. S., 87) show that the forfeiture means the loss of an acquired right. It is the forfeiture of the pay and allowances which the soldier was entitled to receive but failed to receive before he deserted. If, for example, the credit on account of pay and allowances was $40 at time of desertion, and the authorized stoppages entered on the muster roll or descriptive list aggregated $25, the amount the soldier was entitled to receive was $15 (not $40), and the amount of the forfeiture on account of desertion was $15. During the entire period of one-half a century beginning with March 3, 1851, it was uniformly held by the accounting officers of the Treasury that in case of a soldier who deserted and never returned from desertion the amount of the forfeiture on account of desertion was the difference arising after subtracting the sum of the authorized stoppages from the sum of the credits for unpaid pay and allowances. Such difference is the amount due the Soldiers' Home. If such soldier had returned from desertion and had been tried by a general court-martial, found guilty of desertion, and sentenced to forfeit, say, $8 per month of his pay for a period of 10 months, there would have been at the end of the 10 months the further sum of $80 due the Soldiers' Home, being the forfeiture imposed by the court.

The authorized stoppages to be entered on the pay rolls and deducted from the soldier's pay and allowances are set forth in paragraph 1370, Army Regulations of 1913. Such authorized stoppages include "reimbursements to the United States" and "reimbursements to individuals, as the quartermaster or post exchange, for instance." The conclusion reached by the Judge Advocate General of the Army that "stoppages may legally be made to reimburse post exchange, company, and regimental funds" is correct.

In case of a deserter (as well as in case of a discharged soldier or a deceased soldier) who is shown to be justly indebted to the post exchange, a stoppage not to exceed the amount of credit authorized in the regulations governing the post exchange may be lawfully made in favor of the post exchange.

The decision of April 22, 1902, in case of Lesord, and so much of the decision of March 26, 1907, in case of Kaltenback, as is contrary to the views herein expressed, are hereby overruled. The Soldiers' Home acquires a right to receive no greater sum than the soldier was entitled to receive and forfeited by the desertion. The amount of the deserter's indebtedness to the post exchange is payable to the post exchange, not to the Soldiers' Home.

Capt. Herringshaw as officer in charge of detachment fund has presented no evidence to establish a claim for any part of the sum of $6 in question. He states that this sum was charged on pay rolls for June, 1914, as due post exchange from the soldier James M. Taylor, who deserted June 12, 1914, and he further states that this sum was paid from detachment funds to post exchange. He has filed what he describes as "post-exchange credit slips," which bear no date and otherwise are defective. He has made no statement as to the soldier's account with the detachment fund. It would seem to be clear that the officer in charge of a detachment fund can not create a claim against the United States by paying the post exchange any sum charged on the pay rolls as due the post exchange from said James M. Taylor. For reasons above stated (not for reasons stated by the auditor) I find and certify no difference.

PURCHASE OF PASSENGER-CARRYING VEHICLES.

Under the statute prohibiting the use of appropriations for the purchase of motor-propelled or horse-drawn passenger-carrying vehicles the purchase of a Ford runabout, so altered as to provide for the carrying of small quantities of tools and materials but not affecting its passenger-carrying capacity, is not authorized.

Acting Comptroller Warwick to the Secretary of the Interior, August 25, 1914: Your letter of August 18, 1914, requested decision whether the Reclamation Service may purchase "two Ford runabout cars