The expenditure in this case was illegal and the appellant is responsible for it. He contends that he should be reimbursed by collecting the amount from the commanding officer who certified the rolls.

He claims that he had no knowledge of the purpose for which the cook was employed. That knowledge, however, was accessible to him in the records of the naval home. There are the names of 34 employees only on the rolls paid and it would not require much time or labor to examine into the appointments of all. He paid commutation of rations to the nurses, and therefore he knew that they were not entitled at the same time to the services of a cook.

The only law I have knowledge of which may be invoked to relieve a pay officer is section 285 of the Revised Statutes, but this applies only in cases where the commanding officer orders the pay officer to make payments (8 Comp. Dec., 756). In the present case there is no order by the commanding officer. He certifies to the correctness of the rolls, the legality of appointment, etc., but does not direct the pay officer to make payments.

In the absence of any law directing it, I do not believe that the accounting officers are authorized by the regulation referred to to charge a commanding officer with illegal payments made by a pay officer on rolls because certified by him; and certainly not in this case, where it was possible to learn from the records whether or not the payment would be legal.

I am of opinion that the disallowance appealed from was correct. It is therefore affirmed and no difference found.

ORIGINAL CONSTRUCTIONS OF STATUTES BY AUDITORS.

A construction by an auditor of a new statute affirming a construction of a former statute identical in language and for the same purpose is not an original construction of a statute within the meaning of the act of July 31, 1894 (28 Stat., 208), and therefore is not within the Comptroller's jurisdiction to approve, disapprove, or modify.

Comptroller Downey to the Auditor for the Treasury Department, October 23, 1914:

I have your decision of the 17th instant submitted for my approval, disapproval, or modification as an original construction of a statute a current appropriation act for the Revenue-Cutter Service which appears so far as is here material to be identical in terms with appropriation acts for the same service for years past.

By the act of July 31, 1894 (28 Stat., 208), the Comptroller of the Treasury is given jurisdiction to approve, disapprove, or modify all decisions submitted by auditors making original constructions or modifying existing constructions of statutes.

In the present case it does not appear that your decision is a modification of an existing construction of a statute. On the contrary you state, in effect, that the decision affirms the construction of identical statutes (as manifested by the practice of your office) in effect for many years.

As was stated in 19 Comp. Dec., at page 843, when an appropriation is made identical in language with former appropriations for the same purpose it has not been the practice of auditors to submit a decision making a construction of such new appropriation, but it has been the practical construction to hold that the construction of the former appropriations are still in effect. I say the practical construction because, so far as I have been able to ascertain, no specific decision on the question involved has ever been made by this office. However, the question is now squarely before me for decision and, following the practical construction above mentioned heretofore placed on the act of July 31, 1894, supra, in this regard, both by this office and by the various auditors' offices, I hold that a construction by an auditor of a new statute affirming a construction of a former statute, or statutes identical in language and for the same purpose, is not an original construction of a statute within the meaning of the act of July 31, 1894.

It follows from what has been said that this office has now no jurisdiction over the question presented in your decision, herewith returned.

It is suggested that, in future, decisions construing statutes or modifying existing constructions be signed either by the auditor in person or, in his absence, by the acting auditor.

PROHIBITION AGAINST EXPENDITURE OF PUBLIC MONEYS FOR TELEPHONES IN PRIVATE RESIDENCES.

The prohibition in section 7 of the act of August 23, 1912 (37 Stat., 414), does not apply to a telephone installed for official use in an office adjacent to an officer's residence and with entrance from outside.

Decision by Comptroller Downey, October 23, 1914:

T. S. O'Leary, pay inspector, United States Navy, applied October 14, 1914, for revision of the action of the Auditor for the Navy Department in settlement No. 6207-D, dated August 26, 1914, disallowing $47.75 for telephone installed in an officer's quarters at naval coaling station, Bradford, R. I., in violation of section 7 of the act of August 23, 1912 (37 Stat., 414), which prohibits any expenditure of moneys appropriated by Congress:

* for telephone service installed in any private residence or private apartment or for tolls or other charges for telephone service from private residences or apartments, except for long-distance telephone tolls required strictly for the public business.

Public buildings turned over for quarters for Government officials are private residences or private apartments within the meaning of this prohibitive statute (19 Comp. Dec., 198).

The appellant contends that the telephone in this case, though installed in a room of the officer's quarters, was for official use and so used, and submits as evidence a letter from Rear Admiral Caperton, who was at the time commandant of the naval station to which the coaling station now called Naval Coaling Station, Melville, R. I., belonged, and also a letter from Chief Boatswain R. Rohange, who occupied the building in which the telephone was installed. The letter from Rear Admiral Caperton is addressed to Mr. Rohange and states, in part:

"All of the Government force, under your command at the coaling station, were civil-service employees, except the assistant, who was a machinist, so that after working hours each day, and until 9 a. m. the following morning, there was no way of communicating with you by phone except by the use of the phone referred to, it being located in the small office room adjacent to your dwelling, as the main office (about one-quarter mile to one-half mile distant), was closed during the above-mentioned time.

"As I recall now, there was scarcely a day that it was not necessary for me to give orders over this phone, in order to expedite the coaling and oiling of the fleet, and the orders for making preparations to receive oil fuel and coal from vessels from which the Government had contracts to deliver such fuel. Radiograms were received by the commandant after office hours from the fleet, or from vessels approaching Newport, asking for [supplies] early the next morning, and in order to be able to comply with these requests the commandant was compelled to communicate with the custodian at the Melville Coaling Station at once, which was invariably done over the above-mentioned phone.

"In conclusion I will state that I consider the above-mentioned phone absolutely necessary for the official business, with the custodian at the coal depot, in a satisfactory and expeditious manner."

Chief Boatswain Rohange, who was the custodian, states in letter of September 29, 1914:

"There was a phone in the custodian's office, which office is adjacent to the custodian's quarters. This phone had been installed and in use ever since the station was established in 1902. This telephone was, in all intent, installed for the purpose of transacting official business, and was at all times, during my period at Melville, used strictly for that purpose only. This office, though adjacent to the custodian's quarters, is entered from the outside.

"As stated before, the telephone in question was a phone which was in all respects official. I can not recall a single instance where the phone was used for other than official business, as I had absolutely no requirement for a phone."

It thus appears from the statement of Rear Admiral Caperton that the telephone was "located in the small office adjacent to your dwell

ing." And Mr. Rohange, the custodian, states that the telephone was in the custodian's office adjacent to his quarters and is entered from the outside. Based upon these statements I am of opinion that the payment for the said telephone as public expense is not prohibited by act of August 23, 1912, supra.

The auditor's disallowance is therefore disaffirmed and a difference found in favor of appellant of $47.75.

REIMBURSEMENT OF EMPLOYEES OF THE FOREST SERVICE FOR HORSES, VEHICLES, ETC., LOST, DAMAGED, OR DESTROYED.

The Comptroller of the Treasury has jurisdiction to determine generally the scope and purposes of the act of March 4, 1913 (37 Stat., 843), authorizing reimbursement of owners of horses, vehicles, etc., lost, damaged, or destroyed in the Forest Service under certain conditions, but the Secretary of Agriculture has the right, with respect to the facts in each case, to consider, determine, and allow claims presented thereunder without reference to the accounting officers.

Comptroller Downey to the Secretary of Agriculture, October 24, 1914:

I have your letter of the 20th instant in which you ask whether, upon the facts presented, you are authorized, under the provisions of the act of March 4, 1913 (37 Stat., 843), to pay the claim of Stephen I. Garst, an employee of the Forest Service, for $175 for a mule owned by him, which died while being used in said service under a contract of hiring.

The act in question is as follows:

"That hereafter the Secretary of Agriculture is authorized to reimburse owners of horses, vehicles, and other equipment lost, damaged, or destroyed while being used for necessary fire fighting, trail, or official business, such reimbursement to be made from any available funds in the appropriation to which the hire of such equipment is properly chargeable.

The statute quoted presents for consideration a primary question which should first be determined, viz: Does proper procedure thereunder require simply administrative action by way of approval or otherwise for payment on the part of the Secretary of Agriculture and reference to the proper auditor for settlement, or does the statute vest in the Secretary of Agriculture full and exclusive authority to settle claims for reimbursement of the kind contemplated?

The first suggested procedure is, for many reasons, regarded as desirable and proper in the settlement of claims of this or similar character, and I believe it would be much better if it might be applied in case of claims arising under this statute, but it must be conceded that the language employed by Congress in this case is different from that usually used, and that it seems to imply the vesting in you of exclusive jurisdiction to determine and settle.

Possibly the language used might be regarded as vesting an administrative supervision in the Secretary of Agriculture without necessarily meaning that resort should not be had to the usual method of referring claims, after administrative approval, to the auditor for settlement, with usual right of appeal to the Comptroller, but I am inclined to the view that the act must be regarded as vesting in you the right to consider, determine, and allow such claims without reference to the auditor for settlement.

This conclusion does not deprive the Comptroller of his jurisdiction to determine generally the scope and purpose of the legislation and to limit expenditures thereunder to the contemplated purposes, but it does vest in you the right to determine the facts as to whether loss or damage of or to property, for which reimbursement is sought, resulted "while it was being used for necessary fire fighting, trail, or official business," and as an incident to such use, and the amount of the loss or damage.

It follows that the particular question submitted is one which is within your jurisdiction to determine, and hence one upon which I may not render an official decision. All that I might do would be to express an advisory opinion, and that I do not understand has been asked.

FEES AND COMMISSIONS TO REGISTERS AND RECEIVERS.

The customary fees and commissions to which registers of the land office and receivers of public moneys are entitled in connection with the cash sales of Indian lands under the act of April 21, 1906 (34 Stat., 124), are those prescribed by the second paragraph of section 2238, Revised Statutes. Decision by Comptroller Downey, October 26, 1914:

Leroy E. Cummings, special disbursing agent, General Land Office, Pierre, S. Dak., applied October 2, 1914, for revision of the action of the Auditor for the Interior Department in settlement No. 9461, dated July 31, 1914, in disallowing the amount of $38.87 as an overpayment to the register and receiver (one-half to each) for commissions on amount derived from public sale of "Lower Brule Indian lands" pursuant to the provisions of the act of April 21, 1906 (34 Stat., 124).

By this act the Secretary of the Interior was authorized and directed to cause certain townships (approximately 56,560 acres) of the Lower Brule Indian Reservation, S. Dak., to be appraised and disposed of under the general provisions of the homestead laws of the United States to settlers entitled to make entry thereof as therein provided. Further provisions of this act are as follows:

"SEC. 3. That the proceeds arising from the sale and disposition of the lands aforesaid, exclusive of the customary fees and commissions, shall, after deducting the amounts of the expenses incurred