Please advise whether it is proper for the Public Printer to execute printing and binding for the department the cost of which is to be paid from fees, assessments, or sales of property in the absence of specific appropriation by Congress for the maintenance of the activity.

The activities in the Treasury Department which require printing and binding, the expenses of which are not provided for by appropriations of Congress, are as follows:

National bank redemption agency, Office of the Treasurer of the United States.

Federal land banks.

Chief coordinator.

Contingent expenses, national currency.

Insolvent national banks.

Salaries and expenses of national bank examiners.

The act of February 17, 1922, 42 Stat., 372, appropriates for the fiscal year 1923, the following item:

For printing and binding for the Treasury Department, including printing required by the Federal Farm Loan act, $500,000.

The specific item of printing in question is a Treasury Department blank form upon which the office of the Comptroller of the Currency records and files the dates of the respective bank examinations and the assessments against the several banks. It is administrative printing of the Treasury Department and should be charged to the printing appropriation of that department. The expense is an expense of the department in keeping its records, and is not an expense of the examination of the banks which section 21 of the act of December 23, 1913, 38 Stat., 272, provides shall be assessed against the banks.

Of the services named in your letter, the appropriation hereinbefore quoted is specifically made applicable to printing required by the Federal farm loan act. Whether any particular item of printing for the other services is a departmental expense of administration and therefore chargeable as an expense of the service is dependent upon the character and purpose for which the printed matter is to be used.

Assuming that an item of printing is properly chargeable to special fund raised by assessment and not to departmental appro.priation the act of June 30, 1906, would not prohibit a charge of the item against the special fund. That act provides that printing and binding shall be estimated for annually and that no appropriation other than those made specifically and solely for printing and binding shall be used for such purposes. If the expense of printing is not to be paid from an appropriation but from funds raised by assessment there is no basis for an estimate for an appropriation for such printing; and payment would not be from an appropriation in violation of the act of 1906. In any such case I see no legal objection to the procedure heretofore in force under which the printing is done at the Government Printing Office and charged to the special fund.

989449 0-52-11

RECOVERY OF OVERPAYMENTS OF WAR RISK ALLOTMENTS AND ALLOWANCES.

The act of August 9, 1921, 42 Stat., 153, prohibiting the recovery of overpayments of allotments or allowances to designated beneficiaries, except where the beneficiaries do not bear the relationship to the enlisted man, required by the war risk insurance act, or in cases of fraud, does not relieve from liability the officer whose negligence is responsible for the overpayment, nor does it bar recovery from the allottor of the allotments paid as authorized by him but which had not been checked against his pay.

Comptroller General McCarl to the Secretary of War, August 26, 1922:

There has been received your letter of July 15, 1922, requesting decision whether (1) in view of the provisions of section 210 of the war risk insurance act, as amended, 42 Stat., 147, 153, disbursing officers and other officers whose negligence was responsible for payments of Class A and B allotments after that allottor's separation from the service or where he was otherwise in a nonpay status, are relieved of responsibility or liability to the United States for the erroneous payments made the soldier's allottee and not recoverable from the allottee; and (2) whether deductions directed by War Department Circular No. 105 of April 20, 1921, to be continued subsequent to July 31, 1921, when theretofore allotments were paid the soldier's allottee and through error deductions had not been made currently from the soldier's pay are, under the same statute, illegal, and whether such deductions as may have been made pursuant to those directions subsequent to August 9, 1921, should be refunded to the soldier.

The first question arises in connection with the case of Pvt. Chester A. Allen, who was by general court-martial sentence approved April 26, 1921 (G. C. M. O. No. 114, Headquarters, Philippine Department), sentenced to be dishonorably discharged the service, to forfeit all pay due or to become due, and to be confined, etc. It appears that although the soldier's commanding officer was apprised of the approval of this sentence on May 6, 1921, he failed to notify the disbursing officer, as required by departmental instructions. Allotments were paid to the allottee for April, May, and June because of this failure to notify the disbursing officer. The disbursing officer was, however, notified of the sentence in July, but notwithstanding this notification he paid the allotment for July.

It should be remarked that the transaction occurred in the Philippine Islands where, under an arrangement between the War Department and the War Risk Insurance Bureau, disbursing officers of the Army forwarded to allottees residing there Class A and B war risk insurance allotments made for their benefit by soldiers stationed there.

It seems to have been the practice of the War Department prior to the act of August 9, 1921, in cases such as this, to hold responsible

the officer who was negligent in furnishing information as to the changed status of the soldier, and if recovery could not be had from the allotee, to require the negligent officer to make good to the disbursing officer the amount of the overpayment, the disbursing officer being primarily liable to the Treasury for all his erroneous payments. When the disbursing officer's own negligence resulted in overpayment, his only recourse was to the allottee (now prohibited by the act of August 9, 1921) or, if the soldier was again in a pay status in the Army, deductions were made from his pay.

Section 210 of the war risk insurance act, as amended by the act of August 9, 1921, so far as here material, provides:

That whenever an award of allotment or allowance, or both, covering any period has been paid to, or on behalf of, a person designated by the enlisted man as beneficiary of his allotment, no recovery of the allotments paid in such cases shall hereafter be made for any reason whatsoever; and no recovery of the allowances paid in such cases shall hereafter be made for any reason whatsoever except where it is shown that the person receiving the allowance does not bear the relationship to the enlisted man which is required by the War Risk Insurance Act, and except, also, in cases of manifest fraud.

Your first question is, in effect, whether this provision of law relieves disbursing officers of their liability for erroneous payments where they are acting as agents of the War Risk Insurance Bureau in forwarding allotments to allottees. Whatever the agreement

between the War Department and the War Risk Insurance Bureau may have been, it could only authorize the disbursing officer to pay the allottee if the allottee was entitled thereto, it was not a payment by the Bureau of War Risk Insurance, but a payment direct to the allottee instead of a deposit to the credit of the appropriation under which the bureau was required to make the payment to the allottee. The clear implication of the language of the act is that the allottees who received the improper payments are relieved of their liability to refund the improper payments. And it has been held, 6 MS. Comp. Gen., 383, case of Arthur F. White, February 6, 1922, that—

The law in question refers to the collection from the allottee of an allotment erroneously paid, and does not relieve the allotter from liability to pay the allotment as registered by him when correctly paid the allottee. 1 Comp. Gen., 146.

It is suggested, however, that the statute had a broader purpose, that its object was to relieve all persons from any liability in connection with improper payments of allotments. If such was the purpose it was not expressed in apt phrases, and the report of the committee of the House having the bill in charge does not indicate such a purpose. See Report No. 104, Sixty-seventh Congress, first session, where it was said, page 7:

Section 17 of the act relieves the bureau from the recovery of allotments and allowances erroneously paid, except where it is shown that the person receiv ing the allowance does not hear the relationship to the enlisted man which is required by the war risk insurance act and except also in cases of manifest fraud.

In view of the expense to the Government of endeavoring to make further col. lections of overpayments of the kind above outlined, and in view of the hardship such a procedure generally entails to persons who have received the overpayments, many of whom are now unable to make restitution, and most of whom accepted the payments in perfect good faith, recovery should not be sought except where the person has received an allowance through fraud or where a person does not bear the relationship to the enlisted man required by the war risk insurance act.

There is nothing in the language of the act or in the report of the committee to indicate that it was intended to relieve officers of the Government of their liability for improper payments of public funds made possible by their negligence; and there is no warrant for giving the act a construction beyond the scope of the language used, and contrary to the past legislative policy as to the liability of officers or agents of the Government to properly account for public funds.

Your first question is answered by saying that the act of August 9, 1921, does not relieve officers of the consequences of their negligence nor of their liability to make good to the Government the improper payments resulting from their negligence.

With respect to your second question, as to the liability of soldiers still in the service to have deductions made from their pay for allotments paid to their allottees prior to July 31, 1921, when deduction had not been made currently; it has been observed that the act of August 9, 1921, was primarily for the benefit of the allottees, 1 Comp. Gen., 283, and not for the benefit of others who may be liable to the United States in connection with allotments. The allotment paid to the allottee was an amount contemplated to be deducted or withheld from the soldier's pay. If for any reason the deduction was not made currently from the soldier's pay, no recovery may be made for any reason whatsoever from the allottee; but there is nothing in the language of the statute which prevents reimbursement of the Government at a subsequent date of the amounts so paid to the person designated by the soldier by the method originally contemplated, i. e., by deduction from the soldier's pay. And see 1 Comp. Gen., 619. Your second question is answered accordingly.

TRANSFER OF EMPLOYEES AT INCREASED COMPENSATION PAYABLE FROM LUMP-SUM APPROPRIATIONS.

Employees in the office of the Chief of Finance, War Department, are employees in an Executive Department within the meaning of the act of October 6, 1917, 40 Stat., 383, and the transfer of employees from the General Accounting Office to the Office of the Chief of Finance at increased compensation payable from a lump-sum appropriation is prohibited by said act. Comptroller General McCarl to the Secretary of War, August 26, 1922:

By indorsement dated August 16, 1922, being the fifth indorsement on a letter addressed to you by the Chief of Finance under date of

July 11, 1922, decision is requested whether employees in the General Accounting Office may be transferred to the office of the Chief of Finance, War Department, at an increase in salary to be paid from funds made available for personal services in the office of the Chief of Finance in the appropriation provided in the act of June 30, 1922, 42 Stat., 725, in the following terms:

For compensation of clerks and other employees of the Finance Department, $1,460.000: Provided, That $500,000 of this amount shall be available only for the compensation and traveling expenses of clerks and other employees engaged on work pertaining to the audit of World War Contracts, and of this amount not to exceed $25.000 shall be available for personal services, at salaries not in excess of $3,000 per annum, in the office of the Chief of Finance, War Department.

Section 7 of the act of October 6, 1917, 40 Stat., 383, provides:

That no civil employee in any of the Executive Departments or other Government establishments * * * shall be employed hereafter and paid from a lump sum appropriation in any other Executive Department or other Government establishment at an increased rate of compensation.

As the appropriation here involved is a lump-sum appropriation and the General Accounting Office is clearly a Government establishment, the only question presented is whether an employment in the office of the Chief of Finance, War Department, is an employment in an executive department. I am constrained to hold that it is. The Finance Department was established under authority of the act of June 4, 1920. 41 Stat., 766, and said act specifically provides that the Chief of Finance, under the authority of the Secretary of War, shall be charged with such fiscal and accounting duties as may be required by law or assigned to him by the Secretary of War. The office of the Chief of Finance is established in the War Department at the seat of government, and while the Finance Department may be regarded as a part of the Army and as embracing some field service, the work of the office of the Chief of Finance is administrative or departmental in character and relates more to the functions of the Secretary of War as the head of an executive department than to the activities of the Army as a military organization. The office of the Chief of Finance is regularly appropriated for under the title "War Department" and as one of the offices or bureaus of said department. See act of March 3, 1921, 41 Stat., 1278, and act of June 30, 1922, 42 Stat., 721. The appropriation now under consideration to the extent that it is made available for personal services in the office of the Chief of Finance merely supplements the regular appropriation made for said office and persons employed thereunder must be regarded as employees in the War Department the same as are the employees whose salaries are specifically appropriated for under the subheading "Office of the Chief of Finance."

Answering your question specifically you are advised that the proposed transfers at increased compensation are prohibited by the