The auditor has cited 11 Comptroller's Decisions, 641, to the effect that a commissioner is not entitled to the statutory fee for drawing a bond of a Chinese person who has been ordered deported and has appealed from the order of deportation. It is unnecessary for the purposes of this decision to pass upon the correctness of this ruling, because the facts of the case now before me take it out of the letter and the spirit of the former decision.

The account and papers show that the case was heard on May 8, 1914. By agreement and stipulation final judgment was postponed to enable counsel to file briefs and arguments, and bond was taken pending final action, which was not had until November 20, 1914. The Chinaman was not under order of deportation at the time the bond was taken.

The auditor's action in disallowing the item of $8.55 is overruled and the said item is allowed on revision.

Each of the other two items, aggregating $1.80, is of the same general character, involving the commissioner's right to the fees of $0.60 in each of three proceedings for removal of offenders to another district for "transcript of proceedings required by order of court and transmission of original papers to court." In support of his disallowance of these fees the auditor has cited the decision in 20 Comptroller's Decisions, 24.

It is evident from the case in hand and from certain other cases which have come to the attention of this office that the decision cited has been extended far beyond what its text and the facts upon which it is based will warrant. This has led to uncertainty and confusion as to the proper and lawful fees in this connection.

In the case cited the defendants were arrested in the northern district of Iowa and gave bond for appearance in the district of Nebraska, thus doing away with the necessity for an order of removal to the latter district. The commissioner charged and was allowed a fee of 40 cents for a copy of the warrant of arrest, under another clause of the fee bill, said copy being presumably made under the provisions of section 1014, Revised Statutes, to accompany the bond to the district of Nebraska.

The commissioner also charged the fee of 60 cents for transcript of proceedings and transmission of papers to the court in his own district. The charge was made under a rule of court requiring transcript in "cases where the defendant is held to appear before the United States district court." This office held that the district court referred to in the rule was the district court for the northern district of Iowa, and that the rule therefor did not cover the case in question, in which defendants had been held to court in another

district, and no order of removal had been issued by the judge in Iowa.

The ruling thus announced has been extended to all removal proceedings, including those in which the offenders were, in fact, removed on the judge's order, and seemingly without reference to the terms of any particular rule or order governing the making of transcripts or the transmission of papers to court.

Clearly a commissioner must be governed by any rule or order providing for the making of transcripts or the forwarding of papers which the court in his district may have made, and is entitled to any fees lawfully accruing for services rendered under the rule or order. It is therefore not practicable for this office to lay down a general rule which shall govern the allowance of such fees in all

cases.

It would seem that where an offender is arrested in one district for the sole purpose of removal to another district in which charge is pending against him there is no occasion for the transmissions of transcript and papers to the court in the district in which the arrest is made, said court having no connection whatever with the case. This is especially true where bond is given and no order of removal is necessary. Even where an order of removal is required it is unnecessary to docket the removal proceeding or to file any papers in court. (United States v. King, 147 U. S., 676, 682.) If the commissioner's papers and transcript are needed by the judge who hears the application for order of removal they will have served their final purpose in his district when he shall have taken action on the application.

Rules of court will not be construed as requiring this apparently unnecessary service unless the intent to do so is clear and certain.

The rule in the southern district of Ohio, as stated by this commissioner, is that he shall send a transcript to the clerk of the court in his district"in every case." Unless and until otherwise judicially decided, this rule will be construed by this office to apply to cases pending or arising in the southern district of Ohio only, and not to cases pending or arising in other districts.

It has been held by this office that where transcript and papers are in fact sent into the district to which the offender is removed, presumably under rule of court, fee for transcript and transmission is allowable. (20 Comp. Dec., 654.) It appears as a fact in this case that the transcripts and papers were sent to the court in the commissioner's own district and not into the other district. Such transmission is apparently not required by rule and is unnecessary.

The auditor's action in disallowing the items is affirmed.

USE OF CONTINGENT FUND.

Section 3683, Revised Statutes, does not apply to any part of the appropriation "Contingent expenses, Treasury Department, stationery."

Comptroller Downey to Secretary of the Treasury, March 30, 1915:

I have your request of March 23, 1915, for decision upon two ques tions, as follows:

"(1) What official of the department, in conformity with the statutes, is required to sign authorizations (purchase orders) for the delivery of the supplies required for use by the department and obtained from the appropriation Contingent expenses, Treasury Department, stationery;' and (2) in conformity with the statutes may the Secretary delegate authority to sign such authorizations to the Chief of the Division of Printing and Stationery."

As a general proposition it may be said that the matter of signing authorizations or purchase orders for supplies, unless otherwise spe cifically provided for by law, is subject to regulation by the head of the department or Government establishment under which the appropriation was made.

It is understood that these questions are prompted by a doubt as to the applicability of section 3683, Revised Statutes, to the appro priation involved. This section provides:

"No part of the contingent fund appropriated to any department, bureau, or office shall be applied to the purchase of any article except such as the head of the department shall deem necessary and proper to carry on the business of the department, bureau, or office, and shall, by written order, direct to be procured."

In 2 Comptroller Decisions, 42, it was held that—

"section 3683 only applies to cases where an appropriation has been made in a lump sum for 'contingent, incidental, or miscellaneous expenses, or under words of like import, and where Congress has specifically designated appropriations for enumerated items as being for 'contingent, incidental, or miscellaneous expenses.'

When considered in connection with the manner in which appropriations are usually made by Congress, I consider the above holding to be a fair and reasonable interpretation of the provisions of the section quoted, and the said section therefore does not apply to any part of the appropriation for "stationery," cited in your submission. In answer to your specific questions, you are therefore advised as follows:

(1) The Secretary or any responsible officer or employee of the department duly authorized by him to sign and who is famiilar with the needs of the service.

(2) Yes.

2216-VOL 21-15- 44

MILEAGE WHEN TRANSPORTATION IS FURNISHED.

An officer of the Navy traveling under proper orders in the United States and furnished transportation on Government requests is entitled to be paid mileage less cost of transportation furnished and any other expense incurred by the Government.

The "Government transportation," which by act of June 30, 1914 (38 Stat., 393), precludes payment of mileage, is transportation on vessels and other conveyances owned or employed by the Government, but not transportation furnished on Government requests.

Comptroller Downey to the Secretary of the Navy, March 30, 1915:

By your reference dated March 23, 1915, you request my decision of a question presented by Pay Inspector B. P. Du Bois, United States Navy, Navy pay office, San Francisco, Cal., under date of January 16, 1915, as follows:

"1. This office has furnished transportation and sleeping-car accommodations on Navy transportation requests to Asst. Paymaster Kittrelle, United States Navy, from San Francisco to Washington, in obedience to the following telegram from the department:

"NAVY PAY OFFICE, San Francisco, Cal.

"For Asst. Paymaster Kittrelle, en route San Francisco on Army transport Thomas. Request for two months' advance pay not approved. Apply purchasing pay officer, who is directed furnish transportation, deducting cost from claim for mileage.

"BRITTAIN, Acting.'

"2. It is requested that the Comptroller of the Treasury be asked to decide whether any mileage is payable on the orders in question, transportation having already been furnished.”

Officers of the Navy are entitled to mileage for travel in the United States under the following provision in the act of March 3, 1901 (31 Stat., 1010, 1029):

"That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents. per mile, distance to be computed by the shortest usually traveled.

route

*

The orders directing Mr. Kittrelle's travel from San Francisco to Washington are not given; but assuming that he had such, I do not think his acceptance of the transportation furnished had the effect to deprive him of mileage under the statute quoted.

It was said by the court in Chauncey Thomas v. United States (38 Ct. Cls., 70, 73):

"If the officer was entitled to mileage by law, the order of the rear admiral to proceed on transportation to be furnished did not take from plaintiff his right to mileage. Nor did the officer's accept

ance, in itself, of the transportation deprive him of the privilege of claiming and receiving the amount provided by statute. The fact that he traveled on the transportation supplied by the paymaster of the fleet, paid his other expenses, and on arriving in California collected these expenses from the Treasury does not necessarily imply that he waived his legal rights. There was no consideration to support a waiver

*

There is a provision in the naval appropriation act of June 30, 1914 (38 Stat., 393), as follows:

"That hereafter no mileage shall be paid to any officer where Government transportation is furnished."

It is understood that the "Government transportation" there referred to is transportation on vessels owned or employed by the Government or by conveyances on land so owned or employed, but not transportation furnished on transportation request. (See Congressional Record, vol. 51, p. 7644.)

I advise you that if Asst. Paymaster Kittrelle made the travel in question under proper orders he is entitled, from the facts stated, to mileage at 8 cents per mile less the cost of transportation furnished and any other expense to the Government in connection with the travel.

DUPLICATES FOR LOST BULLION CHECKS.

The Treasurer of the United States is authorized to issue duplicates of lost checks drawn by a superintendent of an assay office upon the Treasurer for the value of bullion deposited, the superintendent being out of office. Comptroller Downey to the Treasurer of the United States, March 31, 1915:

I have your letter of March 9, 1915, referring to this office for approval or disapproval the views of the accounting division of your office upon the question of issuing duplicate checks for lost original checks issued for bullion purchases.

The lost checks had been issued in November, 1913, by the superintendent of the New York assay office for respectively $21.40, $5.19, $13.81, $19.63, and $3.70, a total of $63.73, to three separate depositors of gold bullion, and they are claimed to have been lost in transmission by the Union National Bank of Newark, N. J., who is understood to have cashed them.

The bank filed a bond of indemnity to the Government for the purpose of obtaining duplicate checks, and the Auditor for the Treasury Department on February 15, 1915, certified an account (No. 42741) in favor of the depositors, charging the superintendent and authorizing a warrant to issue payable from "Gold and silver bullion deposited and purchased."