tion of instruments and supplies, when not charged to party expenses, office wagon and horses, fuel, gas, telegrams, ice, and washing."

This is an expense for transporting instruments not properly chargeable to party (field) expenses, within the construction placed upon this clause in my decision of May 27, 1895, relative to charges on instruments shipped from San Antonio to Washington. (1 Comp. Dec., 492.)

Respectfully, yours,

Mr. R. J. GRIFFIN,

R. B. BOWLER,
Comptroller.

Disbursing Agent, Coast and Geodetic Survey.

IN RE CLAIM OF ASSISTANT ENGINEER WALTER BALL, U. S. N., FOR LONGEVITY PAY.

The proviso in the act of July 26, 1894, granting the benefits of previous service to all officers who "have been" appointed to any corps of the Navy after serving in a different branch of the Navy, applies only to those who were so appointed prior to the passage of the act.

An officer who resigns an office in the Navy to accept an appointment in another branch of the Navy, does not thereby reenter the service within the meaning of the act of March 3, 1883.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 18, 1895.

The claimant was appointed a naval cadet on the 6th of September, 1888, graduated from the Naval Academy June 30, 1894, and was appointed a second lieutenant in the Marine Corps July 25, 1894, taking rank from the 1st day of July, 1894. On the 25th day of February, 1895, he was appointed assistant engineer in the Navy, which appointment he accepted on March 8, 1895, and executed the required oath on the same day. In transmitting the notice of this appointment on March 7, 1895, Colonel Heywood, commandant of the Marine Corps, directed that "In accepting this appointment, Assistant Engineer Walter Ball, U. S. N., should tender his resignation as second lieutenant United States Marine Corps.

On May 18, 1895, Ball made claim before the Auditor for the Navy Department for his second five years longevity pay, upon the basis of an entry into the Navy as an assistant engineer, and requested a readjustment of his accounts. On

June 22, 1895, the Auditor for the Navy Department disallowed this claim for the following reasons:

"The clause in the act making appropriations for the Naval service for the fiscal year ending June 30, 1895, approved July 26, 1894 (28 Stat., 123) which provides That all officers who have been appointed to any corps of the Navy after serving in a different branch of the Navy, shall have all the benefits of their previous service in the same manner as if said appointments were a re-entry into the Navy.' The words 'that all officers who have been appointed' relate to those officers who had been appointed at the date of the approval of the act, and as the claimant was not appointed assistant engineer in the Navy until after the passage of the act he is not entitled to any of its benefits.

"He has received the benefits of his service in the Navy under his commission as second lieutenant of marines."

The Auditor, in notifying the claimant of this disallowance in his letter of June 25, 1895, pointed out to him that the act of July 26, 1894, "does not apply in your case, as you were transferred after the passage of the law." Yet he appeals to this office.

This claim, in addition to the general laws relating to longevity pay in the Navy, particularly arises under a provision in the appropriation act of March 3, 1883 (22 Stat., 473), providing that

"All officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all of said service had been continuous and in the regular Navy in the lowest grade having graduated pay held by such officer since last entering the service."

In construing this provision the Supreme Court twice held that a naval officer resigning an office in one brauch of the service before accepting an appointment in another branch of the service is only entitled to longevity pay as of the lowest grade, having graduated pay held by such officer since his original entry into the naval service. (United States v. Alger, 151 U. S., 362; s. c., 152 U. S., 384.)

To correct what Congress believed to be an injustice to certain officers as the result of this decision, in the naval appropriation act of 1894 (28 Stat., 123) the following proviso was inserted:

"That all officers who have been appointed to any grade of the Navy after service in a different branch of the Navy shall

have all the benefits of their previous service in the same manner as if said appointments were a reentry into the Navy."

It will be observed that this relates solely to those who had been transferred at the date of the passage of the act. Lieutenant Alger, in his letter of July 22, 1894, in again presenting his claim for longevity pay under this amendatory proviso, states that it was

"framed and passed solely with a view to give officers appointed to any grade of the Navy, after service in another branch of the Navy, the same benefits from their previous service which they should have been entitled to under the act of March 3, 1883, had a period of civil life intervened between their resig nations and their reappointments, or, in other words, had they really reentered the Navy at the date of their last appointment;"

And further

"as evidence of the purpose and intent of the clause referred to, I submit herewith a copy of a letter from the Navy Department to the conferees on the appropriation bill. The Senate having struck out the entire clause under a misapprehension as to its scope, it was restored and passed after the receipt of the Secretary's letter explaining and defending it, with the exception of the words 'or may be appointed, which words were left out so as to limit the application of the clause to officers now in the Navy."

The letter of the Secretary of the Navy referred to is that of July 12, 1894, and in this he states that there are only 15 officers affected in any way by this proviso.

From the above it appears that the Supreme Court, in the Alger Case, has decided that such a transfer from one branch of the Naval Establishment to another is not a reentry into the Navy, and consequently that the claimant's application for longevity pay upon this ground must be denied. It also appears that the proviso in the act of July 26, 1894, has no application to his case, inasmuch as claimant's transfer was effected in 1895, and that the law relates solely to officers who had been transferred prior to the passage of the act.

The cases of Assistant Engineers Kellogg and Allen, referred to in Assistant Engineer Ball's letter of August 14, 1895, have no bearing upon his case, inasmuch as they were discharged from the service after graduation at the Naval Academy, under the act of August 5, 1882 (22 Stat., 285), and consequently never held a position, having graduated pay prior to their subsequent appointment as assistant engineers.

The Auditor's decision denying the claimant's application for longevity pay is accordingly sustained, and the same will not be allowed him.

EDW. A. BOWERS,

Assistant Comptroller.

ACCOUNT OF MATT W. RANSOM, MINISTER TO MEXICO, FOR SALARY.

The appointment of a minister to Mexico made by the President on August 29, 1895, under the circumstances connected therewith, was not to fill a vacancy in that office existing during the last session of the Senate within the meaning of section 1761, Revised Statutes.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 19, 1895.

The Auditor for the State and other Departments, having before him an account of the Hon. Matt W. Ransom as minister to Mexico for salary for a period of nineteen days from August 29, 1895, while receiving instructions and making transit to his post, decided that the same could not be allowed and certified for payment until the Senate had confirmed Mr. Ransom's appointment, on the ground that payment thereof was prohibited by the provisions of section 1761 of the Revised Statutes, because the vacancy which Mr. Ransom was appointed on August 29, 1895, to fill was one which existed during the session of the Senate. The Auditor suspended the account for the approval or disapproval of his action by the Comptroller under the provisions of section 8 of the act of July 31, 1894 (28 Stat., 208).

Section 1761, Revised Statutes, provides:

"No money shall be paid from the Treasury, as salary, to any person appointed during the recess of the Senate, to fill a vacancy in any existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until such appointment has been confirmed by the Senate."

The facts in Mr. Ransom's case appear to be as follows: A vacancy existing in the office of minister to Mexico during the last session of the Senate, on February 23 the President nominated for appointment thereto Matt W. Ransom, and he was duly confirmed by the Senate on the same day. On the afternoon of the 4th of March, after the adjournment of Congress,

Mr. Ransom took the oath of office as minister to Mexico at the State Department. It is stated that his commission to that office was signed by the President on March 5, although dated, according to the custom of the Executive office, Febru ary 23, the date of his confirmation.

Mr. Ransom was, until the expiration of Congress on March 3, a Senator of the United States from the State of North Carolina, his term expiring on that date. On March 3, 1891, the compensation of the minister to Mexico was increased from $12,000 to $17,500 per annum, and has continued at the latter figure from that time to and including the present fiscal year. When the act increasing the salary of the minister to Mexico was passed Mr. Ransom was a member of the Senate. The fact that the salary of the minister to Mexico was increased while Mr. Ransom was a Senator was overlooked both by the President and the Senate on February 23, when he was nominated and confirmed, and was not discovered until some time after Mr. Ransom had been appointad, qualified, and acted as the minister to Mexico. For the reasons stated by the Attor ney-General in his opinion of August 15, 1895, (21 Opin. A. G., —) the appointment of Mr. Ransom under the circumstances was illegal, as in violation of paragraph 2, section 6 of Article I of the Constitution, which provides:

"No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time."

On August 29, 1895, Mr. Ransom was reappointed by the President as minister to Mexico, to hold that office until the end of the next session of the Senate in accordance with the provisions of the Constitution. He took the oath of office upon the same day and thereupon became the de jure as well as the de facto minister to Mexico. The question for decision is whether, under the facts as above stated, the vacancy which Mr. Ransom was appointed on August 29 to fill was one which existed during the session of the Senate within the meaning of those words as used in section 1761, Revised Statutes.

From a careful reading of that section its purpose is manifest, and is to enable the Senate to have an opportunity, as fai as possible, to pass upon the propriety of all appointments to be made by the President which would require confirmation