IN RE CLAIM OF ANDREW SABINE FOR PAY, ALLOWANCES, AND TRAVEL PAY. The discharge of an officer to enable him to accept an appointment in a higher grade in another regiment, the services being substantially continuous, is not a final discharge, and does not entitle him to travel pay. On his final discharge only is he entitled to traveling allowances to the place where he was originally enrolled or appointed in his first service. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, April 20, 1896. Andrew Sabine by his attorney, R. K. Shaw, of Marietta, Ohio, in letter dated October 14, 1895, appeals from so much of the decision of the Auditor for the War Department, evidenced by settlement No. 223234, dated October 1, 1895, as disallows his claim for travel pay on discharge as assistant surgeon Twenty-sixth Regiment Ohio Volunteers, to enable him to accept an appointment as surgeon in the Seventy-sixth Regiment Ohio Volunteers. Claimant was enrolled at Maysville, Ohio, July 2, 1861, and mustered into service July 25, 1861, at Camp Chase, Columbus, Ohio, to serve three years as assistant surgeon Twentysixth Regiment Ohio Volunteers, and was discharged on resignation February 19, 1863, by reason of an appointment as surgeon in the Seventy-sixth Regiment Ohio Volunteers; mustered into service as surgeon February 19, 1863, and was discharged with his regiment at Columbus, Ohio, July 19, 1865. On said discharge he was paid travel pay and subsistence from Columbus, Ohio, to Maysville, Ohio. The Auditor disallowed his claim for pay and allowances upon the ground that he had been paid in full, including travel pay and subsistence on discharge as surgeon, and a review of his account shows that the amounts overpaid him exceed all possible credits. The claimant takes no exception to the Auditor's action on this part of his claim. The Auditor disallowed his claim for travel pay on his discharge as assistant surgeon to accept the appointment as surgeon, upon the ground that, "As he resigned from first service for personal reasons no travel pay is due." From this decision the claimant appeals upon the ground that the discharge was not for personal reasons, but in the interest of the Government. The reason stated by the Auditor is indefinite, and has no application to the facts in the case. The claimant, however, is not entitled to travel pay on his discharge as assistant surgeon, for the reason that said discharge was not final, but simply a transfer and promotion to a higher grade. There was no break in his service, and on his final discharge as surgeon in the Seventy-sixth Regiment Ohio Volunteers, he was entitled to receive and did receive travel pay to the place where he entered the service as assistant surgeon in the Twenty-sixth Ohio Volunteers. (Digest Second Comp. Dec., vol. 1, sec. 2146.) In order to entitle an officer or soldier to travel pay on his discharge under section 15, act of January 29, 1813 (2 Stat., 796; Rev. Stat., section 1289), "he must be out of the service so that the United States have no further claim on him, aud he has a right to go where he pleases." Case of Reichman v. United States (24 C. Cls. R., 485; Digest Second Comp. Dec., vol. 1, sec. 2190 et seq.). The claim is disallowed. EDW. A. BOWERS, IN RE CLAIM OF W. G. YOUNG FOR SERVICES AS REPORTER OF AN ILLEGALLY CONVENED GENERAL COURT-MARTIAL. A reporter employed by a court-martial is entitled to compensation notwithstanding the court-martial was illegally convened of which fact he had no actual knowledge. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, April 24, 1896. The Secretary of War appeals from the decision of the Auditor for the War Department of April 18, 1896, which is as follows: "I certify, that I have examined the claim of W. G. Young on account of services, at $10 per diem, from May 14 to 19, 1895, inclusive, as reporter for a general court-martial convened under Special Orders No. 28, Headquarters Department of the Colorado, May 10, 1895 (which orders and court-martial are held by the Judge-Advocate-General, United States Army, to have been illegal, but the payment of which claim has been authorized by the Assistant Secretary of War to be made from the appropriation for Contingencies of the Army, 1895'), and find that there is nothing due claimant from the United States, for reasons as follows: "A specific appropriation is provided for the payment of services of the character rendered by this claimant under the head of 'Pay, etc., of the Army,' but payment can not be made out of said appropriation as the orders for the court-martial were not issued by proper authority and the proceedings thereunder were illegal. "It is therefore held that no legal obligation was incurred by the United States in the case, and that payment of the claim can not lawfully be made from the regular appropriation made for such services, nor from any other appropriation. "Said claim is therefore disallowed." In this conclusion I can not concur. While it is true that the court-martial was improperly called, yet the reporter and witnesses are not in my opinion bound to investigate the question as to the legality of a court-martial apparently regularly and properly called to determine whether or not it is a legal court-martial. They have a right, it seems to me, to rely upon the fact that the officer acted under color of authority, and that they actually performed services in connection with a de facto court-martial. As to the appropriation from which the services of the reporter are to be paid, it is certain that the item in the Army appropriation act "For compensation of reporters and witnesses attending upon courts-martial and courts of inquiry" is the proper appropriation to be charged with these expenses. The decision of the Auditor is accordingly reversed and the claim will be allowed. EDW. A. BOWERS, CLERKS AT PENSION AGENCIES. The clause in the pension appropriation acts for the fiscal years 1895 and 1896, fixing the pay of the clerk designated at each agency to sign official checks at the compensation allowed during the fiscal year 1894 is not permanent legislation, but is limited to the appropriations to which it is attached; and under the authority contained in the act of March 6, 1896, the Secretary of the Interior may fix the salaries of these clerks during the fiscal year 1897. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, May 1, 1896. SIR: I am in receipt of your communication of the 28th ultimo, inclosing a letter from the Commissioner of Pensions, calling attention to the question of the compensation to be allowed clerks at pension agencies designated to sign official checks. You ask whether it is within your discretion to fix the compensation payable to these clerks for the fiscal year 1897, or whether the limitations placed upon your power in the acts for the fiscal years 1895 and 1896 apply to the fiscal year 1897. In the act of March 6, 1896, making appropriation for the payment of pensions for the fiscal year 1897, there is contained the following clause: "For clerk hire, four hundred and fifty thousand dollars, Provided, That the amount of clerk hire for each agency shall be apportioned as nearly as practicable in proportion to the number of pensioners paid at each agency, and the salaries paid shall be subject to the approval of the Secretary of the Interior." In the act for the fiscal year 1895, of July 18, 1894 (28 Stat., 113), there was a similar clause, to which, however, was added the following: "But the appointment of the clerk to sign official checks, who shall receive the same compensation at each agency as was paid during the fiscal year ending June thirtieth, eighteen hundred and ninety-four, shall be made by the pension agent without other or further approval." A similar qualification is found in the act for the fiscal year 1896, of March 2, 1895 (28 Stat., 704). This limitation has not been in terms imposed upon the appropriation in the act for the fiscal year 1897 and therefore your discretion in the amount of compensation to be allowed clerks designated by pension agents to sign official checks is unlimited, unless the qualifications in the acts for the fiscal years 1895 and 1896 are to be treated as general legislation qualifying all subsequent appropriations for clerk hire and not as special legislation qualifying only the appropriations to which they were appended. It is the usual rule that a qualification appended to an appropriation preceded by the word. "Provided" is, in the absence of other language expressing a contrary intent, simply a limitation upon the particular appropriation to which the qualification is attached as a proviso. I find nothing in the language of the acts for the fiscal years. 1895 and 1896 which indicates that the provisos therein contained were other than qualifications upon the particular appropriations to which they were attached. This view is strengthened by the fact that the qualification originally found in the act for the year 1895 is repeated in the act for the year 1896. If the provision in the act for 1895 had been intended as general legislation, qualifying the provisions in subsequent acts, it would have been unnecessary to repeat it in the act for the year 1896. I am therefore clearly of the opinion that it is within your power to allow for the fiscal year 1897 to clerks designated by pension agents to sign official checks, such compensation as you may deem proper. Respectfully, yours, The SECRETARY OF THE INTERIOR. R. B. BOWLER, IN RE APPEAL OF HENRY C. CARPENTER, UNITED STATES COMMERCIAL AGENT AT FURTH, GERMANY. C. was appointed by the President as commercial agent at Furth, and there being no appropriation for the salary of a consular officer at that place he was allowed, under sections 1729 and 1732, Revised Statutes, to retain as compensation $2,500 per annum from the fees collected. Subsequently Congress appropriated $2,000 in full compensation for the fiscal year 1895 for a consul at Furth. Held: That C. can not be allowed more than $2,000 for the fiscal year 1895. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, May 4, 1896. Mr. Henry C. Carpenter, United States commercial agent at Furth, Germany, appeals from the settlement by the Auditor for the State and other Departments of his accounts from July 1, 1894, to March 31, 1895. It appears that on June 24, 1893, Mr. Carpenter was appointed by the President a commercial agent at Furth. No specific provision having been made by Congress for the compensation of a consular officer at Furth he was authorized by the Department of State, in accordance with the provisions of sections 1729 and 1732, Revised Statutes, to retain of the fees collected by him $2,500 per annum and a further sum, not exceeding $500 per annum, from surplus fees for office rent. Mr. Carpenter entered upon the duties of his office at Furth on August 28, 1893, and has continued to be, and still is, the commercial agent of the United States at that |