under this Title receive his salary while absent from his agency or employment without leave of the Secretary of the Interior; but such absence shall at no time exceed sixty days." The Commissioner of Indian Affairs reports that Superintendent Vincent was given informal permission to be absent from March 18 to 29, 1894. Whether this permission was granted by the Secretary or the Commissioner is not stated, but as section 463, Revised Statutes, charges the Commissioner, acting under the direction of the Secretary, with the management of Indian affairs, it may fairly be presumed that the permis sion to be absent had the sanction of the Secretary of the Interior. As the superintendent was absent by permission, and such absence did not exceed sixty days in that year, he is entitled to his salary from March 18 to 29, 1894. His right to salary from April 3 to 8, 1894, rests on a different foundation. On April 2 he left for his permanent field of duty and was taken sick en route. He was in the line of his duty when taken sick. His duty required him to be where he was at that time, and it can not fairly be said that he was absent from his employment because of his physical inability to continue his journey, for sickness is incident to any duty, and I therefore hold him entitled to salary for the time last above stated. The next question to be considered is, What is the true construction of the words "exclusive of subsistence," as found in the commission of this officer? The words "exclusive of subsistence," as here used, were unquestionably intended to deprive the officer of something to which he would have been entitled under the head of "Actual and necessary traveling expenses." The question is, what has been excluded? The word "subsistence," as defined by the lexicographers, has a general as well as a special or limited meaning. Its general and ordinary definition is: "That which supplies the means of living; that which is furnished; means of support; livelihood." In its limited meaning, it is defined as "food, provisions." The word "subsistence" has often been used in statutes and departmental orders, and, unless used in connection with other words which clearly show its limited meaning, its general definition has invariably been held to be the true one. The act of February 12, 1895 (28 Stat., 657), provides: "That when any officer so traveling shall travel in whole or in part on any railroad [roads specified], he shall be allowed for himself only four cents per mile as a subsistence fund." This language is found in previous acts relating to the same subject, and it has invariably been held to cover all living expenses, hotel expenses, meats and lodging. The words "exclusive of subsistence" will be found in the commissions of the following special disbursing agents of the Indian service: Ambrose H. Hill, John K. Rankin, Henry J. Aten, Joseph R. Gray, and Thomas W. Turpin. None of these officers ever claimed they were entitled to lodging, or that food only was excluded. The same words are found in the commission of Special Agent Marcus R. Sulger. This officer claimed both food and lodging, but both were disapproved by the Commissioner of Indian Affairs and disallowed by the accounting officers. In the accounts of Superintendent Vincent, now under consideration, these are charges for hotel expenses (food and lodging), and these charges have been disapproved by the Commissioner of Indian Affairs, who refused to waive his disapproval when applied to by the officer interested. This action was in entire harmony with the uniform construction given to the words "exclusive of subsistence" when used as they have been in the commission of Superintendent Vincent. The construction to be placed on the words "exclusive of subsistence," therefore, is not a new question, and such longestablished and persistently adhered to construction should not be disturbed without the most cogent reasons. "If there were ambiguity or doubt, then such a practice, begun so early and continued so long, would be in the highest degree persuasive, if not absolutely controlling in its effect." (United States v. Graham, 110 U. S., 221.) In view of the precedents and long practice, I hold that the words "exclusive of subsistence," as used in the commission of Superintendent Vincent, are sufficient to exclude all hotel expenses, lodging and rooms, as well as meals. The third question is a disallowance of 50 cents on account of an alleged error in footing of the abstract of disbursement for the first quarter of 1895. An examination of the papers shows no such error, and the disallowance will be removed, and the account restated in accordance with the statement of dif ferences of even date herewith. EDW. A. BOWERS, PAY OF NAVY OFFICER DETACHED AND RECEIV. ING TREATMENT AT A HOSPITAL. An officer of the Navy formally detached from duty in order that he may receive medical treatment at a hospital is entitled only to waiting orders pay. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, April 17, 1896. SIR: I am in receipt of your letter of April 16, 1896, in which you request a decision in the case of Lieut. H. M. Dombaugh, United States Navy, who is now under treatment at the Army and Navy General Hospital, Hot Springs, Ark., under the following order: "You are hereby detached from duty in the Bureau of Ordnance, Navy Department, will proceed to Hot Springs, Ark., and permission is granted you to report to the commanding officer of the Army and Navy General Hospital at that place for treatment. "A permit for your admission to the hospital from the Surgeon-General of the Navy is herewith inclosed. "Very respectfully, "W. MCADOO, Acting Secretary." From this order it clearly appears that Lieutenant Dombaugh was detached from duty, and therefore placed upon waiting orders, and is accordingly entitled to be paid as "on leave" or "waiting orders," and not to "other duty" pay. In this connection, your attention is invited to my decision of December 14, 1895, in the case of Lieut. Commander G. W. Tyler, (2 Comp. Dec., 298), which in effect holds that the character of the service is not altered by the mere fact that an officer goes to hospital for treatment; but if he is formally detached from his duty in order that he may obtain treatment for his ailment, he is thereby placed upon waiting orders. Respectfully, yours, EDW. A. BOWERS, Paymaster LAWRENCE G. BOGGS, United States Navy, Navy-Yard, New York. PAYMENT OF RENT TO A LESSEE OF A BUILDING. When quarters are rented by the Government from the lessee of a building such lessee and not the owner of the building is the principal and payment of the rent to him is not in contravention of section 3477, Revised Statutes, prohibiting assignments. TREASURY Department, OFFICE OF COMPTROLLER OF THE TREASURY, April 18, 1896. SIR: I have by your reference of April 14, the letter of Capt. H. E. Waterman, secretary of the Mississippi River Commission, of March 19, 1896, requesting a decision in reference to the payment of rent for quarters now occupied by the Commission to a lessee, M. A. Wolff & Co., instead of to the actual owner, Mrs. Virginia Knapp. He states: "It seemed to me that these parties (M. A. Wolff & Co.) had by this lease become for the time being the owners of the building and entitled to sublet the premises to the Government. Accordingly, for the month of January, I paid them the rent, amounting to $110, taking their receipt for the same as principals." It appears, however, that Captain Waterman had some doubt as to the propriety of this action and therefore has referred the matter to your office. An examination of a copy of the lease made by Virginia Knapp, lessor, to the firm of M. A. Wolff & Co. shows beyond question that the action of Captain Waterman in treating Wolff & Co. as the persons to be dealt with was correct. The United States have rented these premises from Wolff & Co., who alone have any claim against the United States and payment to them is payment to the claimant directly, consequently the question of an assignment or power of attorney to collect does not arise, and section 3477, Revised Statutes, and the Comptroller's construction thereof, has no application to this case. I have therefore to advise you that payments may continue to be made to and receipts taken from M. A. Wolff & Co., the lessees of the property in question. Respectfully, yours, The CHIEF OF ENGINEERS, EDW. A. BOWERS, United States Army. PAYMENT TO A DEFAULTING CONTRACTOR OF THE 10 PER CENT RETAINED. Under a contract which provides for the retention of 10 per cent until the completion of the work thereunder, no payment pending the completion of the work of any part of the amount retained can be made after the contract has been annulled on account of the default of the contractor, but the amount should be held to cover any additional cost incurred by the Government in completing the work. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, April 18, 1896. SIR: I am in receipt of a letter of Acting Secretary Doe, of April 15, 1896, in reference to the construction of a levee from Flint Creek to the Iowa River, forwarding papers relating to the subject, with the statement: "From which it will be seen that the contract with Mr. King has been annulled and a new contract been made with other parties for the unfinished portion of the work, and beg that you will favor this Department with a decision whether the amount retained under paragraph 34 of the contract, on account of work performed by Mr. King, can now be paid to him." Paragraph 34 is as follows: "Payments, contingent upon remittances from United States Treasury Department, will be made monthly. A percentage of ten (10) per centum will be retained from each payment until the completion of the contract." From the statements of Lieut. Col. W. R. King, in charge of this work, it appears that the work to be performed under the contract with M. H. King has not been completed, and therefore the answer to your inquiry, in view of paragraph 34, seems self-evident, to wit: That the moneys retained can not now be paid, nor at any time until it is determined what loss, if any, has resulted to the Government from the failure of King to complete the contract, this 10 per cent being retained for the purpose of insuring the Government against any loss through the failure of the contractor to complete the work in accordance with the terms of the contract, as in cases where the work can only be performed at a rate in excess of the contract price. Respectfully, yours, The SECRETARY OF WAR. EDW. A. BOWERS, |