usual fees therefor to the clerk of the district court, or of proceeding under the act of 1911 and printing the record on payment of the same fees to the clerk for comparing and certifying the printed record as he would have received for making and certifying a written or typewritten transcript, there has apparently been no diminution of the fees of the district court clerk. If the plaintiff in error or appellant should elect to take advantage of the act of 1911, the expense to him would be greater, although the amount he may pay to the clerk of the district court would not be in excess of what would be due under the other procedure. The expense in the court of appeals would be less by the abolition of the supervisory fee of the clerk of that court.

While the decisions of the Supreme Court referred to are not controlling, as they were not rendered upon the question of the fees of a clerk of a district court, what was said by the Supreme Court as to the meaning and purpose of the law of 1911 can not be given full effect in the present case by a holding that the clerk is entitled to the fee claimed for making a written or typewritten transcript of the record. The mandatory character of the act of 1911 as to the method of taking up a case on a printed record can not be overlooked.

The decision in 18 Comp. Dec., 333, that a fee for making a written transcript can not be allowed is correct in my opinion, and the rules of the court in the present case do not have the effect to charge the United States with the fees here in question. The case of United States v. Van Duzee (140 U. S., 169) is frequently quoted because of the statement in the opinion in that case that a clerk who performs a service in obedience to an order of the court is as much entitled to compensation as if he were able to put his finger upon a particular clause of a statute authorizing compensation for such service. This theory of determining the right to a fee is not applicable to the present case, and it is also to be noted that the Supreme Court in the later case of United States v. Shields (153 U. S.; 88) said that fees allowed to public officers are matters of strict law depending upon the very provisions of the statute; that they are not open to equitable construction by the courts nor to any discretionary action on the part of the officials.

In view of the fact that the act of 1911 specifies the procedure as to printing of records and provides that "no written or typewritten transcript of the records shall be required," it must be held, under the decisions and precedents herein referred to, that the item of $9.30 allowed by the auditor was not properly allowed and it will be disallowed upon this revision.

This decision does not decide what fees are allowable if the statutory course of procedure (filing a printed transcript in the

court of appeals) is followed. The present case is a claim for fees under the old procedure which was superseded by the law of 1911. The rules of court referred to in the law are rules under which the plaintiff in error is to print, and not rules regarding election to follow or not to follow the procedure outlined in a mandatory statute.

It is to be noted that in the case of Montgomery v. United States (No. 32457) the Court of Claims rendered judgment March 15, 1915, for the United States upon a claim of the clerk of the United States district court for the district of North Dakota for fees for making a written transcript on appeal to the Circuit Court of Appeals in a case in which the United States, as plaintiff, took the appeal and the written transcript had been made upon the written request of the United States attorney representing the United States. No opinion was written by the court. The record indicates that the same question here considered was involved in that case.

APPROPRIATIONS FOR COURT EXPENSES, ETC., FIVE CIVILIZED TRIBES. The appropriation of $10,000, act of April 4, 1910 (36 Stat., 281), and refundments thereof made prior to July 1, 1915, are available until expended for payment of costs, witness fees, etc., in suits brought in the courts of Oklahoma in the interest of allottees of the Five Civilized Tribes having restricted lands but not for allottees having unrestricted lands. Refundments of said appropriation made on or after July 1, 1915, are not available for expenditure.

The appropriation of $85,000, act of August 1, 1914 (38 Stat., 598), for salaries and expenses of attorneys and other employees is not available for payment of court costs, witness fees, etc.

Comptroller Downey to the Secretary of the Interior, June 22, 1915:

I have with inclosures your letter of June 11, 1915, as follows: "I am transmitting herewith a letter from the Commissioner of Indian Affairs, together with a copy of the report of the acting superintendent for the Five Civilized Tribes of May 27, 1915, relating to the construction of the acts of April 4, 1910, and August 1, 1914, in connection with the payment of costs, witness fees, etc., in probate cases. Your opinion is requested upon the questions presented in the report of the Commissioner of Indian Affairs. It is important to the probate service that these questions be determined in the near future.

"I shall therefore deem it a favor if you will advise us concerning the matter at your earliest convenience."

The inclosed letter of the Commissioner of Indian Affairs, dated June 10, 1915, is in part as follows:

"In connection with the probate work in the Indian service in Oklahoma, certain questions have arisen concerning the construction of the acts of April 4, 1910, and August 1, 1914.

"The material portions of those acts, in so far as the present matter is concerned, are as follows:

"ACT OF APRIL 4, 1910 (36 STAT., 381).

"For payment of costs, witness fees, charges in appeals, and other expenses incident to suits brought in the courts of Oklahoma in the name and for the benefit of Indian allottees of the Five Civilized Tribes having restricted lands, to be available until expended, ten thousand dollars: Provided, That when any part of this appropriation has been so used, and has been refunded and covered into the Treasury it shall be credited to said appropriation, and shall be available to be used again for the same purposes and in the same manner as originally provided herein, for a period not exceeding five years. "ACT OF AUGUST 1, 1914 (38 STAT., 598).

"For salaries and expenses of such attorneys and other employees as the Secretary of the Interior may, in his discretion, deem necessary in connection with probate matters affecting individual allottees. in the Five Civilized Tribes, $85,000.'

"It is important for the information of the disbursing officers that the following questions be decided at the earliest date practicable: "1. May the fund appropriated by the first of these acts be used for the payment of costs, witness fees, etc., incurred by the probate attorneys in cases affecting minor Indians whose degree of Indian blood is less than one-half and whose allotted lands are not subject generally to restrictions upon alienation?

"2. If this fund may be used for the payment of such costs, will it be proper for the disbursing officers to advance to a probate attorney a reasonable amount upon his submitting an estimate of the probable expenses incident to bringing the suit?

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3. May the term expenses' as used in said act of August 1, 1914, be construed to include disbursements by probate attorneys for costs, witnesses fees, etc., in probate cases?

"4. If the fund last referred to can be so used, would it be proper for the disbursing officers to advance a reasonable amount for such expenses to a probate attorney upon his submitting an estimate of the probable expenses incident to bringing suit?

"This office has heretofore assumed without question that the word 'expenses' as used in the paragraph quoted from the act of August 1, 1914, was not intended to apply in a limited sense to the personal expenses of the attorneys, but that the meaning is revealed by that part of the paragraph which makes the disbursement subject to the discretion of the Secretary of the Interior, for such purposes as he shall 'deem necessary in connection with probate matters. It would seem that Congress could not have intended to establish a corps of probate attorneys, and to require them, as it were, 'to make bricks without straw. In other words, it would seem that this important work should not be halted by lack of funds by reason of a doubtful construction. *

* *

"Apparently the fund provided for in the act of April 4, 1910, supra, can not be used after the termination of the present fiscal year. If such is the case, we should be allowed to draw as freely as necessary upon it until July 1."

The act of April 4, 1910, supra, provides funds for use in behalf of Indians having "restricted lands."

"Restricted lands" of Indian allottees of the Five Civilized Tribes within the meaning of the provision of the act of April 4, 1910, supra,

are

"All homesteads of said allottees enrolled as mixed-blood Indians, having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled fullbloods, and enrolled mixed bloods of three-quarters or more Indian blood, including minors of such degrees of blood,"

as to which it is provided by section 1, act of May 27, 1908 (35 Stat., 312), that they—

"Shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe."

Indian allottees of the Five Civilized Tribes having "restricted lands," within the meaning of the provision of the act of April 4, 1910, are

1. Homestead owners enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of Indian blood, as to their homesteads, but not as to other of their allotted lands.

2. Allottees of pure Indian blood, or allottees enrolled as having three-quarters or more of Indian blood, including minors of such degrees of blood, as to all their allotted lands including homesteads, except such allottees of either class as may have had or may hereafter have the restrictions removed in whole or in part by the Secretary of the Interior under the provision of the act of May 27, 1908, supra.

The answer to the first formal question, whether the appropriation made in the quoted provision of the act of April 4, 1910, may be used for the payment of court costs, witness fees, etc., in cases affecting minor Indians of less than one-half Indian blood must be answered in the negative, as such minors are not within the class of "Indian allottees of the Five Civilized Tribes having restricted lands," for whose benefit alone the appropriation by its terms was made.

The negative answer to the first question necessarily requires a negative answer to the second question. Even if the answer to the first question were in the affirmative, the second question would still require an answer in the negative, unless the probate attorney to whom it is proposed to advance funds were first made a special disbursing agent and bonded accordingly. Section 3648 of the Revised Statutes forbids the advance of public money and provides

that payment shall not exceed the value of service rendered or articles delivered previously to payment.

As to the third question, whether the $85,000 appropriated by the act of August 1, 1914, is available for payment of court costs, witness fees, etc., as in the case of the $10,000 appropriated in the said act of April 4, 1910, it appears that the correlation indicated by the words "such" and "as" is between the words immediately following the word "such" and the words following the word "as." In other words, the language of the appropriation gives the Secretary of the Interior the exercise of his discretion as to the employment of attorneys and other employees. I do not think the meaning of the words "salaries and expenses" is broadened beyond their ordinary meaning by the words following "as," as might have been the case had the word "such" been otherwise placed.

As the statute was enacted, I think the ordinary meaning of the words "salaries and expenses" must attach to those words and that they can not properly be construed to include court costs, witness fees, charges in appeals, and other expenses incident to suits. The third question is therefore answered in the negative.

The negative answer to the third question involves a negative answer to the fourth question, together with the additional reason given with answer to the second question, supra.

As to the question inferentially but not formally presented in the last paragraph quoted from the commissioner's letter, and of important bearing on the whole situation, viz, whether expenditures can be made after the close of the present fiscal year, under said act of April 4, 1910, it should be considered that under the express terms of the act the $10,000 appropriated is "to be available until expended."

The limitation in the proviso to five years, I think, requires refundments made after the expiration of five years that is, on and after July 1, 1915-to be covered into the Treasury, not to the appropriation but as "Miscellaneous receipts," and that amounts refunded prior to that date have the same status of availability as the original appropriation, which by the terms of the act is available until expended.

PROCEEDS OF SALES.

The receipts from a publication issued by the Federal Reserve Board should be deposited to the credit of the special fund which bore the expense of the publication.

Comptroller Downey to the Secretary of the Treasury, June 26, 1915:

I have your reference of June 23, 1915, of the question raised by the Auditor for the State and Other Departments whether moneys re