months will doubtless elapse before the heirs to the estate can be determined, and the funds distributed to them. Meanwhile the funds, if deposited in a local bonded bank, will draw interest and be available, under Indian Office regulations, for payment of expenses connected with the last illness and death of decedent."

Under the established rule in case of pro rata share of tribal trust fund segregated by the approval of the Secretary of the Interior under the provisions of the act of March 2, 1907 (34 Stat., 1221), if the applicant for pro rata share die prior to the Secretary's approval, the applicant's right lapses.

The application of the same or similar rule in the case now under consideration would seem to demand a revision of settlement No. 43430, with disallowance of amount therein certified in favor of David Eagle Elk, the payee of said warrant, as he died October 28, 1914, prior to the approval of his claim by the Secretary of the Interior February 1, 1915.

There is, however, a clear and ruling distinction between the right of an Indian to a pro rata share of tribal fund held in trust by the United States, and the right of a Sioux Indian, arising under article 7 of the treaty of April 2, 1868 (15 Stat., 635, 637), as modified, first, by section 17, act of March 2, 1889 (25 Stat., 894-895), and second, by the act of June 10, 1896 (29 Stat., 334), under which latter act the allowance to David Eagle Elk was certified in said settle

ment.

In case of lapsed pro rata share of tribal fund the lapsed amount goes back to the tribal fund, the United States being only the trustee in the case, whereas the United States is the debtor in a case arising under the last-named statutes, and if the claimant's right lapsed, the amount would inure to the benefit of the debtor, as appears from the following treaty and statutory provisions:

Said article 7 of the treaty supra provides:

** * *

"In order to secure the civilization of the Indians entering into this treaty, the necessity of education is admitted, especially of such of them as are or may be settled on said agricultural reservations, and they therefore pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school: and the United States agrees that for every thirty children between said ages who can be induced or compelled to attend school, a house shall be provided and a teacher competent to teach the elementary branches of an English education shall be furnished who will reside among said Indians, and faithfully discharge his or her duties as teacher. The provisions of this article to continue not less than twenty years."

Section 17, act of March 2, 1889, supra, provides in part:

"That it is hereby enacted that the seventh article of the said treaty of April twenty-ninth, eighteen hundred and sixty-eight,

securing to said Indians the benefits of education, subject to such modification as Congress shall deem most effective to secure to said Indians equivalent benefits of such education, shall continue in force for twenty years from and after the time this act shall take effect;

*

*

Following such introduction to the section the Secretary of the Interior was authorized and directed to purchase for the use of the Indians certain live stock and other personal property, with a proviso of what shall be issued to each head of family or single person over eighteen years of age, together with fifty dollars in cash, and an appropriation in the following terms:

"and so much money as shall be necessary for this purpose is hereby appropriated out of any money in the Treasury not otherwise appropriated."

The title of the indefinite appropriation thus raised is "Civilization of the Sioux."

The act of June 10, 1896, supra, provides:

* * *

"The Secretary of the Interior is hereby authorized and directed to ascertain the number of Sioux and Ponca Indians in South Dakota and Nebraska who would not be benefitted by the fulfillment of the proviso of section seventeen of an act approved March second, eighteen hundred and eighty-nine, by the receipt from the United States of the articles of personal property therein mentioned, and who desire to have the same converted into money, and in lieu of such articles of personal property, or any part thereof he may think proper, the Secretary of the Interior shall convert or commute the same, or so much thereof as he may think proper, into money, and pay the amount thereof to such Indians; and the payment under the provisions of this act shall be held to be a liquidation of the obligation of the United States to said Indians under that portion of said section seventeen, so far as the articles of personal property therein named are concerned."

Under said acts of Congress there arose an inchoate right of the Indians who were within the contemplation of the acts to the benefits provided for in the acts; and upon the determination by the Secretary of the Interior of the commuted money value of the benefits under the provisions of the act of June 10, 1896, the right of the Indians to such value in money became fixed, definite, and indefeasible, and the obligation of the United States to make such payment could only be discharged by making the payment.

The death of a creditor does not release his debtor from the obligation of the debt, except it be so specifically provided by law or valid contract.

It having been determined according to law that $530.13 was due to David Eagle Elk from the United States, such amount became, upon his death, an asset of his estate.

Said warrant will be transmitted with a copy hereof to the Auditor for the Interior Department, advising him that he is authorized to amend his certificate in said settlement so as to make said amount payable to the order of the superintendent of Pine Ridge Indian Agency, the warrant, amended certificate, and copy hereof to be transmitted by the auditor to the Secretary of the Treasury, that the warrant may be amended accordingly and forwarded to the payee, to be by him deposited to the credit of the estate of David Eagle Elk, deceased, as “individual Indian moneys," and accounted for accordingly.

INCREASE OF PAY AND ALLOWANCES FOR AVIATION DUTY.

The 35 per cent increase authorized under the act of March 4, 1913 (37 Stat., 892), on pay and allowances of officers of the Navy on aviation duty does not apply to payments made to such officers as a reimbursement for amounts expended by them for heat and light.

Comptroller Downey to the Secretary of the Navy, May 14, 1915:

By your indorsement of the 11th instant on a letter addressed to you by Paymaster Robert H. Woods, U. S. N., my decision is requested as to whether an officer of the Navy who is properly on aviation duty and entitled to have his pay and allowance increased 35 per cent under the act of March 4, 1913 (37 Stat., 892), is entitled to have his heat and light allowances increased 35 per cent over the allowances otherwise authorized by law.

The allowances which are authorized to be increased under the provisions of this law are only those money allowances which the law provides shall be paid to the officers (19 Comp. Dec., 649).

The law under which heat and light allowances are now paid provides for the furnishing at Government expense of the heat and light actually necessary for the authorized allowance of quarters, under such regulations as the Secretary of the War may prescribe. The regulations now in force provide that the heat and light may be furnished, under certain conditions and subject to certain limitations, by reimbursing the officer for the amount actually expended by him for heat and light, and that in cases where the amount so expended can not be determined it will be assumed that the maximum amounts fixed by the regulations were expended and reimbursement made accordingly. The payments thus made to an officer are not in the nature of commuted allowances authorized by law, but are to be regarded as reimbursements for amounts actually expended and as the equivalent of furnishing the heat and light in kind.

The question submitted must therefore be answered in the negative.

PER DIEM FEES OF UNITED STATES COMMISSIONERS.

A United States commissioner is entitled to the per diem fee provided for by section 21 of the act of May 28, 1896 (29 Stat., 184), for "hearing and deciding on criminal charges" in a case where he forfeits and estreats a bond of a defendant for failure to appear.

Decision in 10 Comp. Dec., 294, is modified accordingly.

Decision by Comptroller Downey, May 15, 1915:

The Attorney General, on May 11, 1915, requests a reconsideration of my decision of April 22, 1915, in the case of George Keating, United States commissioner, western district of New York, in so far as it relates to a charge of a per diem for June 15 in the case against Omar Weaver, when the defendant failed to appear.

The language of the decision is as follows:

"Commissioner states that the defendant in this case (Omar Weaver) was arraigned on June 8 and adjournment was taken until June 15, at which time the defendant did not appear, and his bond was estreated by the commissioner and report made thereon by the United States Attorney.

"No showing is made by the Attorney General to the effect that the action taken by the commissioner was not a judicial determination of a matter which he was authorized and required to hear and decide' within the rule laid down in the case of United States v. Jones (134 U. S., 483), and therefore the allowance of this item by the auditor will not be disturbed. The absence of the defendant alone does not necessarily deprive the commissioner of his fee."

In his request for reconsideration the Attorney General presents no new facts, but refers to the Fiske case (10 Comp. Dec., 294). which he regards as a parallel case, and in which a similar charge for per diem was disallowed.

In that case the defendant failed to appear and as reported "it was agreed, upon motion of the United States attorney, that the hearing be continued indefinitely in order that the surety might make search for the defendant." No final disposition appears to have been made of the case at the time. It was therein held that there can be no "hearing and deciding on criminal charges" within the meaning of the act of May 28, 1896, in the absence of the defendant and therefore the commissioner was not allowed a per diem on that date.

I think this rule is too broadly stated to be of general application to all hearings before United States commissioners. Under the act of May 28, 1896, the per diem is allowable to the commissioner for "hearing and deciding on criminal charges." In the case of United States v. Jones (134 U. S., 483), the court clearly indicated that the per diem fee was allowable to a commissioner for acts performed in his judicial capacity as distinguished from mere clerical or ministerial acts. And it held that a commissioner's decisions upon motions

for bail and the sufficiency thereof, and upon motions for a continuance of the hearing of a criminal charge are judicial acts in the "hearing and deciding on criminal charges" within the meaning of the statute entitling him to per diem fees. The court did not touch on the necessity of the defendant's presence in all hearings nor does the statute expressly require it, and I fail to see the logic of such a holding.

Cases may arise where a commissioner is without jurisdiction to hear and decide them because of their not being properly presented or not being proper matters to come before him and the per diem fees in such cases are open to those objections and not to the fact that the defendants were not present. The absence of a defendant alone does not necessarily affect the hearing and deciding on a criminal charge. Such hearing and deciding as is contemplated by the statute may be accomplished in the absence of the defendant where, as in the case now being considered, the defendant of his own accord and by his own act absents himself from the hearing. The very nature of the proceeding the forfeiture and estreatment of the defendant's bond-is predicated upon the defendant's failure to appear. Such action could not be taken on any other grounds, and I think it must be conceded that a commissioner's decision to forfeit and estreat a bond of a defendant is as much a "hearing and deciding on criminal charges" within the statute as is his decision to accept the defendant's bond in the first instance. It clearly is not a clerical or ministerial act as defined in the case of United States v. Jones, supra. Nor can it be maintained that the statute which requires a commissioner to perform such an act in his official capacity contemplated that he should be deprived of the per diem fee for the technical reason that the defendant was not present.

The decision of April 22, 1915, will be adhered to.

PAY OF GUN POINTERS.

Enlisted men of the Marine Corps on sea duty are not entitled to have the additional compensation of gun pointers and gun captains included in their

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pay proper upon which is computed the 20 per cent increase of pay for foreign shore duty.

Comptroller Downey to the Secretary of the Navy, May 19, 1915:

I have your letter of May 1, 1915, requesting a decision as to whether enlisted men of the Marine Corps on sea duty are entitled under the act of March 3, 1915 (38 Stat., 948), to have the additional compensation or allowance given them as gun pointers and gun captains included in their pay proper upon which increased compensation of 20 per centum as now fixed by law for foreign shore service is computed.