"Fuel and transportation" (or "Coal and transportation "), is not available for all deficiencies in the appropriation "Maintenance of naval auxiliaries" arising generally in the auxiliary service, but is available only for such deficiencies as are due to expenses incurred in using vessels of that service in carrying fuel, and then only to the extent indicated in the act in question, the necessity for charging such expenses to the fuel appropriation to be established by proper evidence in all cases. I infer, however, that your inquiry has reference only to the deficiencies that I have indicated as proper ones to be met by the fuel appropriation, and, with this understanding, your third question is answered also in the affirmative.

The proposed instructions submitted are as follows:

"NAVY DEPARTMENT, "Washington, March 12, 1915.

"To: Bureau of Supplies and Accounts. "Subject: Charging of expenses of naval auxiliaries engaged in the transportation of fuel to the appropriation Fuel and transportation.'

"1. The lowest obtainable cost of transportation of fuel between the Atlantic and Pacific coasts of the United States by merchant carriers being excessive, and the appropriation Maintenance of naval auxiliaries' being insufficient to pay the expenses of all of the naval auxiliaries required to be kept in commission for the transportation of fuel during the remainder of the current fiscal year, the Bureau of Supplies and Accounts will take the necessary steps to charge the expenses of pay, transportation, shipping, and the subsistence of civilian officers and crews, and such other incidental expenses as can not be paid from other appropriations, of naval auxiliaries engaged in the transportation of fuel to the appropriation Coal and transportation, 1915.'

"2. The Nereus and Proteus having been specifically designated for the run to Cavite for carrying coal, their expenses, usually chargeable to the appropriation Maintenance of naval auxiliaries,' will be charged to the appropriation Coal and transportation' from March 4, 1915, during the remainder of the current fiscal year, if continued on this service during that period.

"3. The amount charged against the appropriation Fuel and transportation' shall not be in excess of a sum sufficient to prevent the incurrence of a deficiency under the appropriation Maintenance of naval auxiliaries.' The naval auxiliaries whose expenses for pay, subsistence, etc., it is desired to charge against the appropriation Fuel and transportation' shall be designated for specific trips or for specific periods to carry fuel from loading ports to points to which it has been customary to transport fuel by chartered merchant vessels. When naval auxiliaries have been designated as above, their expenses for pay, subsistence, etc., shall be charged against the appropriation Fuel and transportation' during the time that they are engaged in the transportation of fuel, including time necessary to proceed to loading port to take on supplies and cargo, to discharge cargo, and return.

"4. The Bureau of Supplies and Accounts will inform the department when the charges for transportation of fuel between the Atlantic and Pacific coasts of the United States by merchant carrier are not excessive, and also when the appropriation Maintenance of naval auxiliaries' is sufficient to pay the expenses of naval auxiliaries engaged in the transportation of fuel.

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"5. A record shall be kept by the Bureau of Supplies and Accounts showing the relative costs of transporting fuel in naval auxiliaries as compared with merchant carriers, the quantity of coal shipped, and other important details, so that this information may be readdy accessible at all times.

"6. The foregoing detailed instructions are issued pursuant to the opinion of the Solicitor for the Navy Department, dated March 9, 1915 (file No. 6203-108), and a letter from the aid for operations, dated March 4, 1915, on the proviso under the appropriation Fuel and transportation' contained in the naval act approved March 3,

1915."

These instructions appear to be in accordance with the terms of the act in question.

EMPLOYMENT OF CLERK FOR DUTY WITH WAR DEPARTMENT BOARD OF REVIEW AT SEAT OF GOVERNMENT.

Under section 4 of the legislative, executive, and judicial appropriation act of August 5, 1882 (22 Stat., 255), the employment of a clerk at present in the Quartermaster's Department at Large of the Army for duty at the seat of Government with the War Department Board of Review created by War Department General Orders, No. 9, of February 20, 1915, is not authorized, it not appearing that such employment is specifically authorized and payment therefor specifically provided by Congress.

Comptroller Downey to the Secretary of War, March 25, 1915:

I have your letter of the 19th instant, requesting my decision whether Mr. Charles O. Kerr, who has been employed as clerk at $1,500 per annum, payable from appropriations for the Quartermaster's Department at Large of the Army, since August 5, 1909, for duty with the Land Defense Board, with station at Fort Wadsworth, N. Y., may be assigned to duty with the War Department Board of Review, created by General Orders, No. 9, dated February 20, 1915, and his salary or compensation continued to be paid from appropriations for the Quartermaster's Department, in view of section 4 of the legislative, executive, and judicial appropriation act. of August 5, 1882 (22 Stat., 255), which prohibits the employment "in any executive department or subordinate bureaus or offices at the seat of Government" of personal services except as specially appropriated for by Congress, and also prohibits “details of civil officers, clerks, and other subordinate employees from places outside of the District of Columbia for duty within the District of Columbia,

except temporary details for duty connected with their respective offices."

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Section 5 of the act of August 23, 1912 (37 Stat., 414), provides that any one violating the act of August 5, 1882 (supra), shall be summarily removed from office, and upon conviction may also be punished by a fine of not more than $1,000 or by imprisonment for not more than one year.

It appears that by paragraph 49 of Special Orders, No. 43, War Department, 1915, the National Land Defense Board and other boards named therein were dissolved and their papers, records, and proceedings directed to be turned over to The Adjutant General of the Army; also that by paragraph 1 of General Orders, No. 9, War Department, 1915, the War Department Board of Review, to consist of the Chief of Staff, Chief of War College Division, Chief of the Mobile Army Division, Chief of the Coast Artillery Division, Office of the Chief of Staff, Chief of Engineers, and the Chief of Ordnance, was created.

By said General Orders, No. 9, it was directed that said War Department Board of Review

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take cognizance of all questions referred to it by proper authority, involving new or modified coast-defense projects or landdefense projects of coast fortifications. It shall also have the duty of originating consideration of subjects pertaining to coast defense or the immediate land defense of coast fortifications.

"This board will be the responsible agency of the War Department for recommending to the Secretary of War whatever is necessary to establish the sufficiency and efficiency of coast defense and the immediate land defense of coast fortifications of continental United States and of its oversea possessions.

"1. All papers pertaining to coast defense or the immediate land defense of coast fortifications, which involve new projects or modifications of old projects and which may come to or originate in the War Department, after a preliminary consideration by such officers as the Chief of Staff may direct and before final action is taken by the Secretary of War, will be referred to the War Department Board of Review for further consideration and recommendation.

"2. The board will meet weekly in the large room of the Secretary of War's suite of offices on such day and at such time as it may decide.

"5. The proceedings of the board will be submitted by the Chief of Staff to the Secretary of War and when approved by the Secretary of War will be filed with the permanent War Department records in the Office of The Adjutant General.

"6. After the Chief of Staff has submitted the recommendations of the board to the Secretary of War in regard to any particular

project or scheme, and this has received the approval of the Secretary of War, the project or scheme will become and will be designated as the approved project' of the War Department."

The Judge Advocate General of the Army has given it as his opinion that there is no legal objection to the assignment of Mr. Kerr to duty with the new board, such assignment or employment not being considered as employment in any executive department or subordinate bureau or offices thereof at the seat of Government within the meaning of the act of August 5, 1882 (supra). The Judge Advocate General says:

"The War Department and its several bureaus are established by law, but the War Department Board of Review is an organization created by general orders to perform certain advisory duties relative to the coast-defense projects of the Army at large and located in the War Department for the convenient and expeditious transaction of its duties

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I am not able to agree with the conclusion reached by the Judge Advocate General. The order supra creating the War Department Board of Review suggests to me that it is a departmental affair, having to do especially with the Army at large. It is composed of bureau officers of the War Department. Its meeting place is in the War Department building. It is the "responsible agency of the War Department" for making certain recommendations to the Secretary of War. The proceedings of the board are to be submitted by the Chief of Staff to the Secretary of War, and when approved by him will be filed with the permanent War Department records in the office of The Adjutant General. Any particular project or scheme submitted by the board, after it has received the approval of the Secretary of War, will be designated as the "approved project" of the War Department.

All of this indicates to me departmental service at the seat of Government within the meaning of the act of August 5, 1882 (supra), and such being the case, I am of the opinion that Mr. Kerr's assignment to duty with said board is not authorized. As has been said in numerous decisions of the courts and this office, the provisions of the act of 1882 are explicit and stringent and prohibit the employment of any person in any of the executive departments or subordinate bureaus or offices thereof at the seat of Government, except in cases where the employment is specifically authorized and payment therefor specifically provided.

In view of what is said, it has not been thought necessary to discuss the provisions of section 9 of the act of March 4, 1909 (35 Stat., 1027), relative to the expenditure of public moneys for commissions, boards, etc.

COMPENSATION OF WEIGHERS, CUSTOMHOUSES.

An appointment by the Secretary of the Treasury to the position of clerk, class 3, and "acting United States weigher" in the New York customhouse, at compensation of $1,600 per annum, does not constitute such appointee a statutory "United States weigher of customs" or entitle him to compensation other than that named in the appointment.

Decision by Comptroller Downey, March 26, 1915:

On March 18, 1915, Jennie McCarty MacMath, administratrix of the goods, chattels, and credits of Thomas H. MacMath, deceased, by her attorneys, filed application for revision of the account stated by the Auditor for the Treasury Department, February 18, 1915, settlement No. 7267, in which claim for $11,013.89, as due said decedent, was disallowed.

The said amount was alleged in the claim to be due the said decedent from the United States as compensation for his services as weigher in the United States customhouse at the port of New York from May 12, 1907, to October 7, 1913, both dates inclusive, at $2,500 per annum.

The admitted facts in the case are as follows:

The said decedent, under the name of Thomas MacMath, was employed in the Customs Service at the port of New York, and held the following positions: He was appointed as "assistant weigher of customs" August 1, 1896, at compensation of $3 per diem “when employed"; he was appointed as "assistant weigher of customs" July 27, 1901, at compensation of $4 per diem "when employed." On July 1, 1908, his designation as "assistant weigher of customs," at $4 per diem " when employed," was changed so that his compensation was at $4 per diem throughout the year. On May 12, 1909, he was appointed as "clerk, class 3, new office, to act as acting United States weigher," with compensation at the rate of sixteen hundred dollars ($1,600) per annum.

The records in the Appointment Division of the Treasury Department show that such last-named appointment resulted from a reorganization recommended by the collector of the port whereby four out of five positions of United States weigher at compensation of $2,500 per annum each were abolished, and 10 assistant weighers at compensation of $4 per diem each were made clerks of class 3, to act as "acting United States weigher of customs" at compensation of $1,600 per annum each, Thomas MacMath being one of the assistant weighers so advanced.

The records of the Appointment Division further show that on August 16, 1911, the advancement of these clerks as "acting United States weighers of customs" to compensation at $1,800 per annum each was directed by the department, upon the recommendation of