instant, inclosing a voucher for the purchase by that office of the New York Herald, the amount to be paid from the appropriation for general expenses, 1895, under the subhead, which reads as follows: "For miscellaneous expenses, contingencies of all kinds, four thousand five hundred dollars." The paper does not appear to have been ordered by a written order of the Secretary of the Treasury in accordance with the provisions of section 3683, Revised Statutes, and for the reasons stated in the recent decision of this office in the case of Puckett (1 Comp. Dec., 566), the item can not be allowed. If it is desirable to obtain this paper for the uses specified by the Superintendent the expense thereof may be paid from said appropriation if an order for the paper is given in writing by the head of the Department, in accordance with the provisions of section 3683, Revised Statutes, provided the total amount of the newspapers purchased by the Treasury Department does not exceed the limit of $100 prescribed in section 192 of the Revised Statutes. Respectfully, yours, R. B. BOWLER, Comptroller. The SECRETARY OF THE TREASURY. TRANSFER OF CONTRACTS HELD BY INSOLVENT CONTRACTORS. Section 3737 of the Revised Statutes prohibiting all transfers of contracts will not prevent payment to the corporation actually carrying out the terms of a contract made by the United States with a contractor, whose rights passed to the corporation through insolvency proceedings, when the United States has received and accepted the goods from the successor of the original contractor. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 23, 1895. SIR: I am in receipt, by your reference, of a letter of the Chief of Ordnance, inclosing certain papers relating to the Leonard Smokeless Powder Company, of New York, whereby it appears that that company, with which the Chief of Ordnance had entered into a contract for the supply of 5,000 pounds of smokeless powder, had made a general assignment 11268-VOL 2- -4 of all its property for the benefit of creditors, and that subsequently, in pursuance of an order of the court, the assignee had sold all the company's property and rights to one John C. Osgood, who organized the American Smokeless Powder Company, a corporation under the laws of West Virginia, to whom all his rights thus acquired were assigned, and that this latter company had carried out the provisions of the contract originally made with the Leonard Smokeless Powder Company, and has delivered the 5,000 pounds of smokeless powder, which has been accepted by the Government. The Chief of Ordnance. asks whether, under the circumstances, he is authorized to pay the American Smokeless Powder Company, as the successor of the Leonard Smokeless Powder Company, the amount due under the contract. Section 3737 of the Revised Statutes provides: "No contract or order, or any interest therein, shall be transferred by any party to whom such contract or order is given to any other party, and such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States." It has, however, been held that section 3477, which prohibits or makes null and void all transfers and assignments of claims against the Government, does not apply to involuntary assignments in bankruptcy (Erwin v. United States, 97 U. S., 392), or even to voluntary assignments for the benefit of creditors (Goodman v. Niblack, 102 U. S., 556). It seems to me that the reasoning of these cases applies with equal force to section 3737, and that the American Smokeless Powder Company, as the mere successor of the person who had acquired the rights of the Leonard Smokeless Powder Company under the insolv ency proceedings, stands practically in the same relation as the assignee would. However this may be, it has been held that section 3737 is intended only for the benefit of the United States. (15 Opin. A. G., 235-246; 16 Opin. A. G., 278; see also 18 Opin. A. G., 88.) As the Government has apparently recognized the transfer and accepted the goods under the contract from the American Smokeless Powder Company as the successor of the Leonard Smokeless Powder Company, on the proof furnished by the Chief of Ordnance of that fact, as contained in the inclosures with his letter, I am clearly of the opinion that payment may be made under the contract to the American Smokeless Powder Company. Respectfully, yours, The SECRETARY OF WAR. R. B. BOWLER, Comptroller. CONTRACT FOR REPAIRS, NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS. An appropriation for the fiscal year 1895 is not available after the expiration of that year for payment of the expenses of repairs for which contracts were awarded but not actually entered into, within the meaning of section 3690, Revised Statutes, during such year. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 24, 1895. SIR: I am in receipt, by your reference, of a letter from Gen. W. B. Franklin, president Board of Managers, National Home for Disabled Volunteer Soldiers, relating to my decision of June 19 (1 Comp. Dec., 545), in regard to the appropriation from which the expense of replacing the worn-out boilers of the Western Branch of the Home should be paid, to wit, from the appropriation for "Construction and repairs," and not from the appropriation of "Household." Among other things, he says that the appropriations have been under substantially the same wording ever since the Home was established, and that "boilers for use under the head 'Household' have been paid for under that head, while their setting has been paid for under the head Construction and repairs."" He asks in view thereof for a modification of my decision, and that the expense may be paid from the appropriation for "Household" for the year ending June 30, 1895, as the bids were advertised for and the contract awarded during that year. He does not state, however, that the contract was actually entered into. I see nothing in General Franklin's letter to authorize a modification of my decision of June 19. That the previous practice was wrong is clearly indicated by the fact that one whole item of expense was charged to two different appropriations, for no distinction can be drawn between the purchase of the boiler and the setting thereof. The boiler when set becoming a fixture clearly shows that the appropriation for "Construction and repairs" is the proper appropriation with which this expense should be charged. As the contract does not appear to have been entered into during the fiscal year 1895, although the necessity for the expenditure then arose, under the provisions of section 3690, Revised Statutes, the expense can not be charged to the appropriation for the fiscal year 1895, but must be charged to the appropriation for 1896. Respectfully, yours, The SECRETARY OF WAR. R. B. BOWLER, Comptroller. IN RE ACCOUNT OF HENRY DAVID, UNITED STATES VICE-CONSUL AT MARTINIQUE. The payment of a vice-consul's draft drawn for his salary, and specifically including the period prior to the approval of his bond, is a payment of his salary, and upon the settlement of his account he can not be recharged with the amount covering his service as a de facto officer. While it is a general rule that the payment of drafts of consular officers is not a settlement of the account upon which they are drawn, but such payments are charged as advances and accounted for upon the statement of an account, yet the payment of salary upon the draft of a de facto officer is such a payment as can not be recovered back by the Government. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 25, 1895. In the settlement of the account of Henry David, vice-consul at Martinique, for the period ended June 30, 1894, the Auditor for the State and other Departments disallowed his salary from May 23 to June 11 for the reason that his bond was not approved by the Department of State until June 12, 1894. The term of service of the consul at Martinique ended May 22 and Mr. David, as vice-consul, took charge of the consulate on May 23, and performed the duties of the office during the quarter ended June 30 and thereafter. In his account Mr. David claimed salary from May 23 to June 30, at $1,500 per annum, amounting to $160.70, and credited the United States with the amount of fees received by him, $24.50, leaving the balance due on account of his compensation $136.21. He transmitted this account in September, 1894, and drew a draft for the balance in October, which draft was paid by Treasury warrant issued November 5, 1894. On December 21, 1894, the Auditor settled the account and recharged Mr. David with salary from May 23 to June 11 on the ground that during that period he was a de facto officer and not entitled to claim compensation. The vice-consul appeals to the Comptroller for a revision of this settlement. Mr. David was, from May 23 to June 11, in charge of the consulate as vice-consul and performed the duties of the office, and was, therefore, a de facto officer, as was held by me in Percival's Case (Bowler's First Comp. Dec., 282). As such he is not entitled to claim compensation from the Government. It is equally well settled as a principle of law that compensation paid to a de facto officer can not be recovered back. (Badeau v. United States, 130 U. S., 439.) The question in this case is whether the payment of Mr. David's draft was a payment of his salary for the period prior to the approval of his bond. Paragraph 543 of the Consular Regulations of 1888 provides that fees collected by a consular officer shall be applied, first, to the payment of his compensation. Section 1747 of the Revised Statutes requires that consular officers shall make a return of fees to the Secretary of the Treasury and hold the same subject to his draft or other directions. In the absence of other instructions from the Secretary of the Treasury Mr. David properly applied the fees collected by him to the payment of his salary, and under the decision of the Percival case, above referred to, such fees can not be recharged to him. As to the balance of the salary for the period ended June 30, for which Mr. David's draft was honored, I think the payment of that draft was such a payment as will preclude the Government from recovering the amount covering the period prior to the approval of the bond. In Badeau v. United States, supra, it was said: "But inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he has received money which, ex æquo et bono, he ought to return." Mr. David's account was adjusted by the Auditor on the theory that the payment of the draft was not a payment of the salary claimed prior to June 12, but that the honoring of the draft was simply an advance of money to the vice-consul on |