It appears that the only existing regulation prescribed, under authority of this law, with reference to the class of officers or employees now under consideration is paragraph 259, General Land Office Circular 105, of May 4, 1912, which reads:

* *

* ** *

"United States surveyors, chiefs of field divisions, special agents, will be allowed a per diem in lieu of subsistence in accordance with the terms of the appropriation under which they are employed, while traveling on official business, During leave of absence that may be granted no per diem will be allowed from the date that such leave begins to the day that the employee again enters upon active duty."

With reference to this regulation the First Assistant Secretary of the Interior, in a letter to this office, dated March 15, 1915, said:

"The limitation in this paragraph to 'while traveling on official business' has never been applied to the special agents and others employed under the appropriation Protecting public lands, timber, etc., for the reason that they are considered to be in a continuous travel status."

It thus appears that this proviso (which has been attached to each annual appropriation for protecting public lands, timber, etc., since 1892), and the regulation made in pursuance thereof, has been regarded as authorizing the payment of a per diem in lieu of subsistence to officers and employees only while in a travel status. And I think this is the only reasonable interpretation that could be given to this law.

The only theory, then, upon which it could be held that chiefs of field divisions are entitled to the per diem while on duty at their headquarters is that they are "in a continuous travel status."

I fail to see how an officer or employee could at any time have been regarded as in a travel status while at his designated headquarters— his fixed and permanent post of duty. But whatever may have been the rulings on this point prior to July 1, 1914, the act of April 6, 1914 (38 Stat., 312, 318), provides that on and after July 1, 1914, unless otherwise expressly provided by law, no officer or employee of the United States shall be allowed or paid any sum in excess of expenses actually incurred for subsistence while traveling on duty away from his designated post of duty; and section 13 of the act of August 1, 1914 (38 Stat., 680), provides that the heads of executive departments are authorized to prescribe per diem rates of allowance not exceeding $4 in lieu of subsistence to persons engaged in field work or traveling on official business outside of the District of Columbia and away from their designated posts of duty when not otherwise fixed by law.

The effect of these two laws is to prohibit the payment of expenses actually incurred on account of subsistence, or of a per diem in

lieu thereof, to any officer or employee of the United States while at his designated headquarters or established post of duty (21 Comp. Dec., 507).

Your decision, in so far as it holds that agents and others employed under the appropriation "Protecting public lands, timber, etc., 1915," are entitled to a per diem in lieu of subsistence while at their designated headquarters, is disapproved.

PAYMENT OF CLAIMS SPECIFICALLY APPROPRIATED FOR.

Appropriations to named claimants, with provisions relative to whom payment may be made, are not the subject of regulations to be prescribed by the head of the department, but are for the consideration of the accounting officers, and the claims for payment may be filed directly with the auditor. For procedure prescribed to give effect to the protective features of an appropriation without prejudice to the recognized rights of others, see decision.

Comptroller Downey to the Secretary of the Treasury, March 20, 1915:

I have your letter of March 9, 1915, requesting suggestions "in the form of regulations for the Secretary's approval establishing the procedure to be followed by the accounting officers in making settlements for the payment of the claims" under the appropriation made by the act of March 4, 1915 (Public, No. 289).

The act authorizes the Secretary to pay "to claimants in this act named the several sums appropriated herein.”

The provisions of the act material to be noticed in connection therewith are sections 3 and 4, as follows:

"SEC. 3. That in case of the death of any claimant, or the death or discharge of the executor or administrator of any claimant herein named, payment of such claim shall be made to the legal representatives: Provided, That where a claimant is dead the administrator, executor, or legal representative shall file a certified copy of his bond, which bond must be at least equal in amount to the sum hereby appropriated, except that where the claim grows out of service rendered the United States in the Army or Navy and the payment to be made under this act is less than $500, and the person who rendered the service is dead, and no demand is presented by a duly appointed legal representative of his estate, payment may be made to the decedent's widow or legal heirs as is provided by existing laws relating to the settlement of accounts of deceased officers or enlisted men of the Army and Navy, Thirty-fourth Statutes at Large, page seven hundred and fifty, and Thirty-fifth Statutes at Large, page three hundred and seventy-three: Provided further, That in all cases where the original claimants were adjudicated bankrupts payment shall be made to the legal representatives or next of kin instead of to the assignees in bankruptcy: And provided further, That wherever under this act it is provided that a payment be made to an executor or an administrator, whether original or ancillary or de bonis non, and

such executor or administrator is dead or no longer holds his office, payment shall be made to the successor therein, his title to hold such office being established to the satisfaction of the Secretary of the Treasury, and wherever under this bill it is provided that a payment be made to a corporation or quasi corporation and such corporation or quasi corporation has been merged in or consolidated with another corporation or quasi corporation, payment shall be made to the corporation or quasi corporation with which the consolidation or merger has been made.

"SEC. 4. That no part of the amount of any item appropriated in this bill in excess of twenty per centum thereof shall be paid or delivered to or received by any agent or agents, attorney or attorneys on account of services rendered or advances made in connection with said claim.

"It shall be unlawful for any agent or agents, attorney or attorneys to exact, collect, withhold, or receive any sum which in the aggregate exceeds twenty per centum of the amount of any item appropriated in this bill on account of services rendered or advances made in connection with said claim, any contract to the contrary notwithstanding. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding $1,000."

The act is an authority to the Secretary of the Treasury to pay. Section 3 provides to whom payment shall be made under certain conditions. In one of the provisos of that section respecting payment to the successor of an executor or administrator, "his title to hold such office" is to be established to the satisfaction of the Secretary of the Treasury. However, I do not conceive that there is anything in this or any other provision of this section requiring the Secretary to prescribe regulations in detail governing the evidence upon which the accounting officers will act in making settlements.

The specific action to be taken under the act is that of making payment to the claimants named, who appear in the act as individuals, heirs, legatees, executors, administrators; churches, schools, colleges, hospitals, lodges (also the officials of such bodies the trustees, vestrymen, churchwardens, treasurer, etc.), municipal officers, and county courts.

The appropriation is to these claimants, and there is no question to be determined as to the merits of their claims requiring administrative examination. That has been done by the findings of the Court of Claims, which gave rise to the appropriation.

The claims for payment are therefore properly to be filed direct with the auditor, and it is for him to determine in the first instance the identity of claimants to whom the payments are to be made and the evidence necessary to establish it, or the procedure to be observed in the necessary compliance with the authority and requirements of section 3 in case of the bankruptcy or death of a claimant, or death

or discharge of an executor or administrator, or merger or consolidation of a corporation or quasi corporation. It is not for you to prescribe the evidence the auditor shall require to establish any fact involved.

In answer, then, to your request for suggestions in the form of regulations, I have to say that these provisions concern conditions not the proper subject of regulations to be prescribed by you, but go to the question of evidence to be required by the auditor in his determination of the question as to whom payment may in each case properly be made.

But a question arises as to whether the provisions of section 4 (supra), which impose a limitation upon the amounts which may be paid or delivered to or received by agents or attorneys for services or advances in connection with the claims, are of such a tenor as to require them to be taken into consideration by the accounting officers. The section is in two paragraphs.

The first paragraph prohibits any part of the amount of an item in excess of 20 per cent being "paid or delivered to or received by any agent or agents, attorney or attorneys on account of services rendered or advances made."

The second paragraph makes it unlawful for the agents or attorneys "to exact, collect, withhold, or receive any sum" in the aggregate in excess of 20 per cent of the amount of any item for services rendered or advances made in connection with said claim.

This second paragraph deals exclusively with the agents and attorneys; but the first paragraph is more general, and by the words "paid or delivered to " must address itself to those who have the paying or delivering of the items of the appropriation; and it also addresses itself to the agents or attorneys by the words " or received by."

Its analysis thus requires that the one shall not pay or deliver and the other shall not receive in excess of 20 per cent for services rendered or advances made; and the payment, delivery, or receipt, upon which the limitation is placed, has to do specifically with "services rendered or advances made."

It has not recently been the practice in settlements by the accounting officers of claims to make payment direct for the services, expenses, etc., of the attorney representing the claim, but such authority has heretofore been exercised by them. (See 6 Comp. Dec., 106; 7 id., 307, 829.)

I do not construe the provisions of section 4 (supra) as mandatorily imposing such a duty upon the accounting officers in the present matter, but I do construe them as requiring the settlements to be so made and the warrants thereon so delivered as not to violate the prohibition thereof.

It is the general practice to deliver warrants upon settlements to the attorney, and also to accept the attorney's indorsement upon the warrant drawn in the name of the claimant, upon his filing a power of attorney complying with the provisions of section 3477 of the Revised Statutes.

If this practice is here permitted, it will in the one case be a delivery to the attorney of the warrant for the full amount of the claim; and in the other case the attorney will receive the money in the full amount of the claim; and in either case he may be enabled to enforce of the claimant a demand for fees, etc., in excess of the prescribed limitation and given opportunity to do that which the statute seeks to prohibit. The provisions of section 4 are intended unquestionably for the protection of the claimant, and a procedure must be adopted that will support this end.

I see no such distinction between delivery of a warrant and actual receipt of the money thereon as will permit a warrant for the full amount of the claim to be delivered to the agent or attorney of the claimant; and indeed the prohibition is not only against payment but is also against delivery, and the use of the latter word must be regarded as for a purpose.

But the Congress by the provisions of section 4 has recognized that there are agents and attorneys representing these claims. Its enactment does not intend otherwise than that they should be paid for their services and advances, even though it has sought to limit the amount.

One of the means of the agent or attorney obtaining his pay, and in many of these claims it would probably be the only means, is through the possession of the warrant making payment of the claim. It is upon this that the statute immediately operates, and a warrant for the full amount of the claim may not be given to the agent or attorney. But it is obvious that if, instead of that, warrants in the name of the claimant are issued-one equal in amount to the agent's or attorney's fees, etc., not exceeding the statutory limitation and delivered to the agent or attorney, and another for the remainder delivered directly to the claimant-I say it is obvious that the claimant has no remaining interest in the warrant delivered to the agent or attorney and may withhold indorsement of it, and the attorney may be deprived of his pay at the whim of the claimant or be required to resort to litigation to obtain it; and thus possession of this warrant be practically useless.

There is no particular duty upon the accounting officers to protect agents or attorneys in their financial relations to their clients, but it is apparent the possible situation stated might arise from the method adopted of enforcing the limitations of section 4, and the protection intended for the claimant would be afforded in such a way as to