it is inclosed is an incident of interment. The view of the matter is certainly correct. "Interment" as used does not mean simply the expenses of actually placing the body in the ground. There is no reason why such a service within that narrow limitation should cost more than twice as much for an officer than for an enlisted man. Expenses of interment as used mean what are more commonly called "funeral expenses," including casket and the usual incidents as well as actual burial.

The decision referred to also held with reference to the appropriation for transportation of remains that the purchase of a casket and box in which the remains must be placed for transportation purposes was an expense incident to transportation.

The decision further held that the expense of transportation in order to bury the body at home is as much an incident to its interment under one act as is the expense of casket and box an incident to transportation under the other act.

There is no apparent reason why "transportation" in the one act, meaning transportation, probably by rail, to a distant home of the deceased, is not as much an incident of his interment at his home as is transportation in a hearse to a cemetery in the vicinity an incident to expense of interment as used in the other act.

The effect of the decision was to hold that expense of transportation to the home of the deceased for interment purpose was a proper expense for reimbursement through the medium of the amount required to be withheld from gratuity.

In that case the facts as shown were that the Government paid the expense of preparing the remains, furnished casket and box and paid for transportation to the deceased's home, where relatives attended to and paid for the actual interment of the body. Payment of the $35 retained was claimed by the beneficiary because the Government did not actually inter the body. It was refused because the Government had paid expenses necessarily incident to interment in excess of that amount.

If that decision was wrong, then it must be held that preparation of remains, casket, and box are incidents of interment, a part of funeral expenses, if the same agency accomplishes their furnishing and the actual burial, but that they are not incidents to interment if the actual burial is accomplished by another agency. In other words, to entitle the Government to reimbursement out of gratuity for any expense incurred it must necessarily perform the last duty of actually placing the remains in the ground. This construction is too narrow and unreasonable, and in my judgment the decision referred to, when correctly understood, was right. It did not charge against gratuity

any expense borne by the beneficiary and did not work the assumed injustice.

In the light of the law as it then existed and the assumed injustice thereunder sought to be corrected it is required that the meaning of the proviso in the act of March 3, 1915, be determined.

The proviso is attached to an appropriation for transportation of remains of officers and men to their homes. It necessarily excludes from deduction from gratuity the expense of such transportation. The real question is as to the meaning of "preparation " in that connection. Used in connection with this appropriation and so conjoined as they are, "preparation" and "transportation" as used in the proviso are regarded as applying to such expenses only in cases involving transportation.

If "preparation" in that connection means casket and box and such expenses as are incident to burial as well as to transportation, then the injustice would result of leaving such expenses a charge against gratuity when the interment is in the vicinity of the place of death without occasion for or expense of transportation and relieving the gratuity of such a charge and placing the expense on the Government whenever there was occasion for the assuming by the Government of the additional cost of transportation. Congress surely did not mean to accomplish such inequity.

But it is apparent that if expense of transportation be excluded from charge against the gratuity and there be excluded also such expense of "preparation" as may be made necessary by reason of transportation, in addition to such expense as is incident to interment whether there be transportation or not, the result will do equity by equalizing the charges against gratuity in each class of

cases.

When one construction tends to inequality of rights under the law and another to equality, the latter, if otherwise permissible, should prevail.

I accordingly conclude that expense of transportation of remains and such expense of preparation as may be incident to transportation, in addition to the expense necessarily incident to burial without transportation, can not be charged against gratuity. The expense of such preparation for burial as is incident thereto without regard to whether there is transportation or not will still be regarded as a part of "expenses of interment" within the meaning of the act of 1912 as amended by this proviso. In either event any residue of the amount retained out of gratuity over and above any expenses paid by the Government is, of course, to be "subsequently paid " to the beneficiary.

Question "c" is therefore answered in the affirmative.

FEE OF UNITED STATES COMMISSIONER FOR ISSUING A SECOND SUBPENA FOR WITNESS.

The act of May 28, 1896 (29 Stat., 184), providing a fee of 25 cents for “issuing subpoena or subpoenas in any one case" does not deprive a United States commissioner of his fee for issuing a necessary second subpœna for a witness not heard of when the first subpoena was issued.

Decision by Comptroller Downey, March 29, 1915:

The Attorney General applied March 18, 1915, for revision of the action of the Auditor for the State and Other Departments in settlement No. 27259, dated February 23, 1915, of the accounts of R. L. Edwards, United States commissioner, western district of Texas, in allowing 20 cents of an item which had been deducted upon the administrative examination, as follows:

"Page 15, case against S. Becker, charge in excess of 35 cents for issuing subpoenas for three witnesses, $0.25."

In the above case a subpoena was issued on December 11, 1914, for two witnesses to appear at a hearing before the commissioner set for December 19. On December 18, upon instructions of the United States attorney, a second subpoena was issued for a party who it was learned would be an important witness for the plaintiff, which fact was not known when the first subpoena was issued.

For these two subpoenas the commissioner charged a total fee of 60 cents. The auditor allowed 55 cents, being 25 cents for each subpœna and 5 cents for the additional witness, and suspended the other 5 cents as an excessive charge. This allowance is based on the ruling in decision of October 9, 1914 (71 MS. Comp. Dec., 85), upon a similar item.

The Attorney General's deduction was made under the rulings in the Ridgway case (10 Comp. Dec., 628), and the Dixon case, dated April 29, 1902 (21 MS. Comp. Dec., 446), to the effect that under the commissioners' fee bill a commissioner is limited to a fee of 25 cents for the issuance of the subpoena for the first witness and 5 cents for each necessary witness in addition to the first.

The fee bill (act of May 28, 1896, 29 Stat., 184) provides:

66* *

*; issuing subpoena or subpoenas in any one case, with five cents for each necessary witness in addition to the first, twenty-five cents;

* *

I think the holding in the cases cited by the Attorney General is rather too technical to be applied here, and not required. The above provision of the fee bill evidently contemplates that the Government shall not be put to unnecessary expense of separate subpoœnas for witnesses in the same case. It should not be construed so as to deprive a com

missioner of his proper fee for issuing a necessary second subpoena for any material witness whose name was not brought to his attention when issuing the first subpoena. The commissioner can not control such matters. It is his duty to include in the first subpoena the names of all prospective witnesses required in a case of whom he has notice or knowledge, and if this is not done and separate subpoenas are issued but one fee of 25 cents can be allowed. But where, as in the case now under consideration, a later subpoena was necessarily issued for a witness not heard of when the first subpoena was issued a separate fee of 25 cents is properly allowable.

In this connection see decision of December 28, 1906 (39 MS. Comp. Dec., 1257), construing a somewhat similar provision for issuing subpoenas in Alaska, and 19 Comptroller's Decisions, 798, applying a similar construction to a provision for "recognizance of all witnesses in a case."

The allowance of this item by the auditor was proper, and is affirmed.

FEES OF UNITED STATES COMMISSIONERS.

The purpose of Treasury Department circular of July 30, 1896 (3 Comp. Dec., 43), is to uphold requirements of law and regulations in the matter of rendition of fee accounts. It should not be so applied as to work injustice or unnecessary hardship to officers who are not guilty of intentional disregard of regulation.

The statutory commissioner's fee of 60 cents for transcript of proceedings and transmission of papers to court is not allowable in proceedings for arrest and removal into another district when made for and transmitted to the court of the district in which the arrest is made, unless specifically required by rule or order of court. Rules or orders will not be construed to require said service unless the intent to do so is clear and certain.

Decision by Comptroller Downey, March 30, 1915:

Joseph L. Adler, United States commissioner for the southern district of Ohio, applied March 5, 1915, for a revision of the action of the Auditor for the State and Other Departments in disallowing by settlement No. 27099, dated January 25, 1915, certain items in the commissioner's account for the quarter ending December 31, 1914, amounting to $10.35, as follows:

"1. Case against Lee Shew, etc., page 1: Issuing subpoena, April 16, and entering return April 21, 75 cents; oath at trial, 10 United States witnesses, and hearing and deciding, May 8, 1914, $6; drawing final bond, 75 cents; oath to 8 United States witnesses as to attendance, etc., and order, etc., on May 8, 1914, $1.05. These fees were not earned during the quarter covered by your account. See

paragraph 1652, Instructions. Also defendant was ordered deported, hence is not entitled to bail. (11 Comp. Dec., 641.) It is suggested that an appeal be taken to the Comptroller of the Treasury at Washington, D. C. Disallowed, $8.55.

"2. Case against E. R. Erickson et al., page 3: Transcript, etc. Since the defendants were dismissed, it does not appear that there was any necessity to send the transcript to clerk of court for the southern district of Illinois. (20 Comp. Dec., 24.) Disallowed, $0.60.

"3. Cases against C. A. Houston, page 5, and D. H. Cummings et al., page 8: Transcript, etc., removal case. (See 20 Comp. Dec., 24.) Disallowed, $1.20.

"Total now disallowed, $10.35."

Paragraph 1652 of the Instructions of 1904, to which item 1 refers, provides that each quarterly account of a commissioner must include all charges for services rendered during the quarter, even when the complaint in a case is drawn in one quarter and the hearing is not completed in the same quarter. This is a lawful and reasonable regulation and should be observed by commissioners and upheld by the accounting officers in all proper cases. It does not in itself, however, justify the disallowance of charges where the failure to include them in the proper quarterly account is not in willful disregard of regulation but is due to inadvertence or mistake on the part of the commissioner.

The allowance of supplemental charges of officers for fees accruing during the period covered by a former account is dealt with in a circular of the Treasury Department dated July 30, 1896 (3 Comp. Dec., 43), which circular provides that such supplemental charges shall not be considered by the accounting officers, but that the Comptroller of the Treasury may waive the circular "where manifest justice requires such action in order to correct clerical or other inadvertent omissions."

The purpose of the circular is to uphold the requirements of law and regulation in the matter of the rendition of fee accounts. It should not be so applied as to work injustice or unnecessary hardship to officers who are not guilty of intentional disregard of regula

tion.

This commissioner explains that he was under the impression that it is not proper in cases under the Chinese exclusion laws to claim any fees until the case has been finally disposed of. The case in question extended over several quarters for which accounts for other fees had been rendered, but no fees in this case were charged until the quarter in which the case was finally disposed of. Upon this explanation the provisions of the circular are now waived.