States within said District, shall constitute funds for the sup- ton." The Solicitor of the Treasury gave an opinion upon this question, in which he said: "The special provision with regard to postal revenues should, I think, prevail over the more general direction relating to the disposition of fines, penalties, and forfeitures in this District." And this opinion was concurred in by the Postmaster-General. While I understand that the practice has not heretofore prevailed of treating such fines as a part of the postal revenue, it does not appear that the matter was ever given serious consideration. Under the circumstances, I do not think this practice should weigh against the opinion of the Solicitor of the Treasury and the Postmaster-General, which seems to agree with the policy of the law in regard to the postal revenues generally. Your decision is, therefore, so far modified that the $50 heretofore referred to should be deposited as a part of the revenues of the postal service and not as revenue of the District of Columbia. Officers of the Navy on the retired list traveling under orders are entitled to the same allowance for mileage as officers on the active list. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, September 6, 1895. SIR: I have, by your reference of the 5th instant, a letter of the Acting Secretary of the Navy to John Russell, a gunner in the United States Navy, notifying him of his retirement, pursuant to the findings of a retiring board, and ordering him to proceed to his home. You ask whether mileage should be paid him under said notice and order. In reply, I have to inform you that officers of the Navy placed upon the retired list continue, nevertheless, subject to the rules and articles for the government of the Navy, and are entitled to the usual allowance for mileage when traveling under orders. You are therefore authorized to pay the usual mileage in this case that officers of the Navy receive when traveling under orders, and the same will be allowed in the settlement of your accounts. Respectfully, yours, F. C. COSBY, EDW. A. BOWERS, Pay Director, United States Navy, Washington, D. C. REGULATION REQUIRING APPROVAL OF THE EM- A person employed by an officer of the Marine-Hospital Service without TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, September 6, 1895. SIR: I am in receipt, by your reference, of a letter dated May 28, 1895, from Surg. James M. Gassaway, Marine-Hospital Service, with reference to the compensation due to Joseph B. Arleans, at $2 per day, for services as overseer in the work of removing sand from the batture on the reservation of the marine hospital at New Orleans. You ask for my decision whether the amount, $184, is a proper charge against the appropriations for the Marine-Hospital Service. It appears that the overseer was employed without the previous approval of the Department, as is required by the regulations for the government of the Marine-Hospital Service. I am of the opinion that the amount due Joseph B. Arleans, under his employment as overseer, may be paid from the marine-hospital fund, provided the regulation requiring such employment to be reported to the Department for approval be waived by you in this instance. Respectfully, yours, R. B. BOWLER, Comptroller. The SECRETARY OF THE TREASURY. EXTRA-DUTY PAY OF ENLISTED MEN OF THE MARINE CORPS. Enlisted men of the Marine Corps detailed for extra duty as clerks at the headquarters of the Corps are entitled to extra pay at 50 cents per day, that being the amount fixed by law for enlisted men of the Army on extra duty as clerks at Army, division, and department headquarters. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, September 6, 1895. SIR: I have received your letter of June 3, submitting for my decision the question of the right of the quartermastersergeant of the Marine Corps to "extra-duty pay" for "extraduty services" as clerk in the quartermaster's office, performed by him in pursuance to a regular detail authorized by the Secretary of the Navy. The record shows that Charles Miller, quartermaster-sergeant, has for many years been doing "extra duty" as clerk in the quartermaster's office of the Marine Corps, under a regular detail authorized by the Secretary of the Navy, which authority specified that the usual allowances should be made him for this labor. This same question was presented to the Second Comptroller in 1873, and under date of April 3 of that year the Comptroller said: "General Order No. 92, of 1868, authorizes to enlisted men of the Army detailed as clerks the extra duty pay of 35 cents per day and commutation of rations, fuel, and quarters. The Marine Corps being assimilated to the Army in pay and allowances, I see no reason why an enlisted man of the Marine Corps who may be detailed to perform the duty of clerk is not entitled to the same allowance." (Vol. 35, p. 240.) Again the question came before the Second Comptroller, and under date of March 23, 1886, that officer decided as follows: "The headquarters of the commandant of the Corps may, I think, properly be regarded as a division or department headquarters within the meaning of those terms as used in the Army appropriation acts of 1885 and 1886, and enlisted men. on extra duty as clerks at such headquarters would be entitled to 50 cents per day additional pay, while enlisted men detailed for extra duty as clerks in the quartermasters' offices in Philadelphia and elsewhere would be entitled to extra pay at the rate of 35 cents per diem." It will be seen that section 1612, Revised Statutes, provides that the pay and allowances of officers and enlisted men of the Marine Corps are made the same as those of like grades of the infantry of the Army. Section 1287, Revised Statutes, provides that soldiers detailed for "extra duty" of certain kinds shall be allowed extra pay therem specified. This section, however, does not provide for clerical services. The act of July 5, 1884 (23 Stat., 110), and the act of March 3, 1885 (23 Stat.. 359) (the latter carried into the Supplement to the Revised Statutes of 1891, second edition, p. 482), provide "for the payment of enlisted men on extra duty, at constant labor of not less then ten days; and such extra-duty pay hereafter shall be at the rate of fifty cents per day for clerks at Army, division, and department headquarters, and thirty-five cents per day for other clerks, and other enlisted men on extra duty." It will also be seen that it has been held that the headquarters of the commandant of the Marine Corps are to be regarded as a division or department headquarters within the meaning of those terms used in the acts of July 5, 1884, and March 3, 1885, above noted; therefore, whatever enlisted men of the Army are entitled to when detailed as clerks at division or department headquarters belongs of right to enlisted men of the Marine Corps when detailed as clerks at the headquarters of said Corps. The detail of enlisted men of the Army for extra duty and their compensation for the same have generally been governed by Army Regulations and General Orders of the War Department, and, so far as these do not conflict with statute law, have been regarded as having controlling effect. Since the passage of the acts of 1884 and 1885, above referred to, one or more general orders have been issued by the War Department relating to the detail of enlisted men for "extra duty." and the pay for the same. These are now embodied in paragraphs under Article XXIV, Army Regulations of 1889. Paragraph 163 provides as follows: "For services as mechanics, artisans, and school teachers, 50 cents per day; as overseers, clerks, teamsters, and laborers, and for all other extra-duty services, 35 cents per day." Paragraph 167 provides: "Soldiers on extra duty shall be paid the exact rates of pay allowed by law for the duty performed, Paragraph 163 would seem to be in conflict with the acts of 1884 and 1885, so far as concerns the rate of pay allowed to enlisted men detailed as clerks, yet when read in connection with paragraph 167, which provides that the rates allowed by law shall be paid, the true construction of paragraph 163 appears to be that the rates there fixed should govern, except in cases where the law provided otherwise. The law fixes the rate for enlisted men detailed as clerks at Army, division, and department headquarters at 50 cents per day, and even if the regulations provided otherwise, the law must control. Paragraph 165, Army Regulations of 1889, has been referred to as bearing on the question under consideration. I do not think it touches the question adversely. The quartermastersergeant has been detailed by the special authority of the Secretary of the Navy, and the extra duty performed by him is not properly services rendered in his Department. The conclusion reached from a consideration of the foregoing laws and regulations is that the quartermaster-sergeant of the Marine Corps is legally entitled to 50 cents per day for the extra duty performed by him as clerk in the office of the quartermaster of the Corps at Washington, D. C., and payments made by you in accordance with this decision will be allowed in the settlement of your accounts. Respectfully, yours, Maj. H. B. LOWRY, EDW. A. BOWERS, Quartermaster United States Marine Corps, Washington, D. C. IN RE CLAIM OF R. DOERNER, SERGEANT UNITED STATES MARINE CORPS, FOR TRAVELING EXPENSES WHILE DETAILED AS CLERK. A sergeant in the Marine Corps performing special clerical duty at the headquarters of the Corps is not a clerk within the meaning of the clause "for expenses of clerks of the United States Marine Corps traveling under orders," contained in the act of July 6, 1894, making appropriation for the naval service; neither does he come within the class of persons entitled to sleeping-car berths under paragraph 1212 of the Army Regulations. An enlisted man in the Marine Corps, detached, can not be allowed reimbursement for meals while traveling under orders, as he comes within the provisions of paragraph 1424 of the Army Regulations providing for his subsistence in such case. |