The real question seems now to be whether the language found in the act of 1879 is broad enough to include transportation of sailors and marines within its provisions. In the opinion of the Attorney-General of February 4, 1891 (20 Opin. A. G., 11), cited by you, it seems very properly held that the word "troops" found in the different acts relating to the bond-aided railroads is broad enough not only to include the land but the naval forces of the Government, but the Attorney-General does not, so far as I can see, go to the extent of holding that the words "transportation of the Army," as employed in the act of March 3, 1879, should be regarded as the equivalent of the term "transportation of troops." The words "transportation of the Army" found in the act of March 3, 1879, has received official construction so as to include all transportation services rendered for the Army, materials as well as persons. To make the term broad enough to cover services for the Navy, it must be held as the equivalent of the term, "transportation of the Navy." I do not feel authorized to give the act of 1879 that construction. The reasons set forth by you why the course pursued in respect to Army transportation should apply equally to Navy transportation have strong persuasive force, and, if adopted, I have no doubt would prove of benefit to the Government; but in view of the language of the act of March 3, 1879, I am compelled to decide that there is no legal authority for the application of that rule to Navy transportation. Respectfully, yours, The SECRETARY OF THE NAVY. EDW. A. Bowers, APPROPRIATION FROM WHICH MILEAGE OF NAVY OFFICERS SHOULD BE PAID WHEN THE TRAVEL COVERS PORTIONS OF TWO FISCAL YEARS. The mileage of Navy officers is properly payable from the appropriation for the fiscal year in which the major portion of the travel, when such travel covers portions of two fiscal years, is made. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 12, 1895. SIR: I am in receipt of your reference of July 11, forwarding the letter of Lieut. Commander C. T. Hutchins, in which F he states, "that I left San Francisco June 25, 1895." From this date it appears that it was possible for this journey to have been concluded prior to the expiration of the fiscal year ending June 30, 1895. The rule in the payment of mileage is that the same shall be charged to the appropriation for the year in which the travel is performed, and if the travel is begun at a time sufficiently prior to the expiration of the fiscal year to enable the officer to complete a continuous journey before the close of the fiscal year, it is payable entirely out of the appropriation for that year. If, however, the travel is begun so late in the fiscal year that the major portion of it is performed in the succeeding fiscal year, it is payable out of the appropriation for such succeeding year. I have, therefore, to advise you that in the case of Lieutenant Commander Hutchins, the mileage is payable out of the appropriation for the fiscal year ending June 30, 1895. The orders of May 6 and 22, 1895, of Lieutenant Commander Hutchins, and his letter of July 11, are herewith returned. Respectfully, yours, F. C. COSBY, Pay Director, U. S. N., EDW. A. BOWERS, Assistant Comptroller. Navy Pay Office, Washington, D. C. PAYMENT FOR PERSONAL SERVICES FROM SPE CIAL APPROPRIATION. A person regularly employed for work contemplated by the terms of a special appropriation may be paid from said appropriation notwithstanding he may be otherwise temporarily engaged for a short period of time on other duty connected with the work of the bureau under which he is employed. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 12, 1895. SIR: I am in receipt of your letter of the 9th instant inclosing a voucher in favor of L. G. Schultz "for services in preparing magnetic records for publication," amounting to $125 for the month of May, 1895. You ask whether said voucher may be paid from the appropriation "Publishing observations, Coast and Geodetic Survey, 1895.” It appears that Mr. Schultz was occupied in Washington part of the month and then went to San Antonio in connection with certain court proceedings there. He remained in San Antonio completing "magnetic records and inventories." Mr. Schultz having been regularly employed for work contemplated by the terms of said appropriation, the fact that he may have been otherwise engaged for a few days does not prevent his being paid from the appropriation referred to. You are, therefore, authorized to pay the voucher for $125. Respectfully, yours, R. B. BOWLER, Comptroller. Mr. R. J. GRIFFIN, Disbursing Agent, Coast and Geodetic Survey. IN RE CLAIM OF JOEL M. BRYAN FOR SERVICES RENDERED NORTH CAROLINA CHEROKEES, AND PROPOSED MODIFICATION OF DECISION OF SECOND COMPTROLLER OF OCTOBER 20, 1893. The $20,000 appropriated by the act of March 3, 1893, to pay for the removal and subsistence of the Eastern Band of Cherokees, can not be considered as expended to an extent greater than the sum of the balances finally certified by the proper accounting officers and chargeable to said appropriation. Claims properly arising under the eighth article of the Cherokee treaty of December 29, 1835, and section 5 of the act of Congress of July 29, 1848, may be examined and certified, notwithstanding no appropriation exists for their payment. (Decision of Second Comptroller of October 20, 1893, approved.) TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 15, 1895. Under date of May 14, 1895, the Auditor for the Interior Department rendered a decision making an original construction of a clause found in the Indian appropriation act approved March 2, 1895 (28 Stat., 901), reading as follows: "That the Secretary of the Interior is hereby authorized and directed to pay to Joel M. Bryan, for services rendered the North Carolina Cherokees residing in the Cherokee Nation west, in accordance with the proceedings of a council of said North Carolina Cherokees held in Tahlequah, in the Indian Territory, March twelfth, eighteen hundred and ninety-two, now on file with the accounting officers of the Treasury Department, the sum of three thousand dollars, out of any unexpended balance of the amount appropriated by the act of March third, eighteen hundred and ninety-three, for the removal and subsistence of those members of the Eastern Band of Cherokees who have removed themselves, as well as those who may now or hereafter desire to remove themselves, to the Cherokee Nation, in the Indian Territory " Under this act Mr. Bryan claims the sum of $3,000 out of any unexpended balance of the amount appropriated by the act of March 3, 1893 (27 Stat., 630), reading as follows: "That for the amount necessary to pay for the removal and subsistence of those members of the Eastern Band of Cherokees who have removed themselves, as well as those who may now or hereafter desire to remove to the Cherokee Nation, in the Indian Territory, at the rate of fifty-three dollars and thirty-three cents per head, being the amount specified in the eighth article of the Cherokee treaty of December twenty-ninth, eighteen hundred and thirty-five, and the act of Congress approved July twentyninth, eighteen hundred and forty-eight, twenty thousand dollars, or so much thereof as may be necessary, to be expended under the direction of the Secretary of the Interior." The Auditor submits the following decision to the Comptroller for his approval, disapproval, or modification: "Under this statute the sum of $20,000, or so much thereof as may be necessary, was appropriated for the removal of certain members of the Eastern Band of Cherokees, to be expended under the direction of the Secretary of the Interior. "By the proceedings of the council of North Carolina Cherokees held at Tahlequah, in the Indian Territory, March 12, 1892, Bryan was employed as attorney to secure the payment of the said $20,000 by the United States, and was to receive for his services 15 per cent of the amount appropriated. "Under the decision of the Second Comptroller of September 14, 1894, no part of this $20,000 was available to pay Bryan, and the act of March 2, 1895, above quoted, was passed for his relief. Whether be can be paid under that act depends on whether there is any unexpended balance of the original $20,000 appropriated. "By the terms of the act of March 3, 1893, the expenditures were to be made under the direction of the Secretary of the Interior, and he made the following regulation to govern payment: """DEPARTMENT OF THE INTERIOR, "OFFICE OF THE SECRETARY, "Washington, D. C., July 24, 1893. "The COMMISSIONER OF INDIAN AFFAIRS. "SIR: I return herewith the claims of certain members of the Eastern Band of Cherokees and North Carolina Cherokees for reimbursement of expenses claimed to have been incurred 11268-VOL 2- -2 in their removal to the Cherokee Nation, Indian Territory, which were submitted with your communication of the 20th instant. "In accordance with your request, authority is hereby granted for your office to take administrative action thereon and to forward said claims, both those filed since the passage of the act of March 3, 1893, and those filed in 1877 and 1878, to the accounting officers of the Treasury for settlement as they may see proper, according to the rolls on file in the Second Auditor's office, upon which the Eastern Cherokees have previously been paid, and as evidence submitted with the claims may justify. "I concur in your suggestion that, as the amount of money appropriated for the payment of these claims is not sufficient to pay all of them, the preference in payment be made in the order in which said claims were filed. "Very respectfully, "WM. H. SIMS, "Under this regulation the Commissioner of Indian Affairs certified to this office for payment 209 claims. Of these claims 106 have been finally acted upon, involving $16,158.15, and leaving $3,841.85 of the appropriation still unexpended. The amount claimed in the 103 cases still awaiting final action in this office is $20,358.72. It will thus be seen that there have been certified to this office by the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior, claims far in excess of the original $20,000 appropriated. These claims must be paid in the order certified under the direction of the Secretary of the Interior. "Under section 3679 of the Revised Statutes the Comptroller has no power or authority to allow money to be drawn from an appropriation where its ascertained liabilities are greater than the amount standing to its credit upon the books of the accounting officers.' (Digest Second Comp. Dec., vol. 3, sec. 116.) "The fact that there are funds standing to the credit of an appropriation on the books of the Treasury at a particular time is not conclusive evidence that said appropriation is not at that time legally exhausted. The mere act of entering into contracts requiring the entire sum appropriated for their fulfillment exhausts the appropriation to which they are chargeable, though not a dollar of said appropriation has been drawn from the Treasury.' (Digest Second Comp. Dec., vol. 3, sec. 130.) "The ascertained liabilities against this appropriation as certified by the Secretary of the Interior are much greater than the amount standing to its credit upon the books of the accounting officers. It is therefore exhausted, and there remains no unexpended balance out of which Bryan can be paid. This claim should, therefore, be disallowed." |