the five cars for crossing the Omaha Bridge instead of for the three cars, into which the freight was originally loaded and received at Council Bluffs.

The appellant contends that it was authorized to make this transfer under a provision found in Transcontinental Freight Rate Committee Tariff No. T. 3, rule 4, reading as follows:

"All freight is subject to transfer en route as the necessity or convenience of the carriers require."

The right of the carrier to make the transfer is not questioned by the Auditor for the Navy Department, but he contends that any change affecting the amount to be paid for the service detrimental to the shipper can not properly follow the reloading of the freight. He further says:

"The aggregate charge for the service is not affected; but in the apportionment of the total charge between the subsidized and unsubsidized earnings of the company the effect of making two additional carloads and charging the maximum bridge toll on them is to reduce by $10 the subsidized earnings which will be withheld and applied to the liquidation of the company's subsidized debt and to increase by the same amount the unsubsidized earnings which will be paid to the company in money."

The position taken by the Auditor is correct. The right of the carrier to make the transfer to suit its own convenience or necessities may be admitted, but it does not follow that this furnishes a sufficient ground for placing the shipper in a less advantageous position, either as to the amount to be paid under a contract of shipment, or (as in the present case) in the distribution of the earnings of the company. The action of the Auditor is affirmed.

EDW. A. BOWERS,

Assistant Comptroller.

IN RE APPEAL OF GEORGE W. SPROULE, CLERK UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF MONTANA.

A clerk of a United States court is required by section 833 of the Revised Statutes to include in his return of fees and emoluments all fees earned by him whether actually collected or not.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 1, 1896.

Mr. George W. Sproule, clerk of the United States circuit. court for the district of Montana, appeals from the settlement

by the Auditor for the State and other Departments of his emolument account for the year 1894. In that settlement the clerk was charged with certain fees earned for services rendered by him to private individuals, but which he has not collected and which he states it is impossible for him to collect. Most of these fees were for services rendered during the progress of various suits, as for filing papers or swearing witnesses, while some of the fees were for services rendered in habeas corpus proceedings. It has been the uniform holding that clerks and marshals are chargeable under section 833, Revised Statutes, with all fees earned by them respectively whether they have been actually received or not (7 Opin. A. G., 610; 8 id., 33; 11 id., 455; 1 Lawrence Comp. Dec., 75), notwithstand ing they may have been unable to collect these fees by reason of insolvency or nonresidence of the parties or other causes (11 Opin. A. G., 455). Mr. Sproule claims, however, that even if this rule be adhered to generally the fees earned by him in habeas corpus proceedings form an exception. For this he relies upon In re Moy Chee Kee (13 Sawyer, 121). In that case Judge Sawyer expressed a doubt as to whether the fee bill applied to habeas corpus proceedings, but determined to tax the costs in such proceedings in accordance with its provisions. He specifically held, however, that

"As those fees are for official service they are part of the official income of the clerk as clerk and, like other fees, are to be accounted for, as has always heretofore been done, to the Government."

No distinction, therefore, seems capable of being drawn between fees earned in habeas corpus proceedings and those earned in other cases. The clerk calls attention to the following clause in Judge Sawyer's opinion:

"There undoubtedly may be cases on habeas corpus where, under peculiar circumstances, it would be proper and even necessary for the court to require the performance of this service without compensation."

As it does not appear that before these services were rendered by the clerk the court did order him to perform them without compensation, it is not necessary to determine whether, if he had been so ordered, he would have been exempt from returning the fees which he would ordinarily have been entitled to receive in such proceedings, on the ground that they

were not fees "received or payable," which by section 833 he is required to return.

The settlement by the Auditor is therefore affirmed.

R. B. BOWLER,

Comptroller.

EXPENSES OF AGENT IN EXAMINING PROPERTY UNDER CONTROL OF THE TREASURY DEPART MENT.

The expenses incurred by an agent of the Secretary of the Treasury sent to examine and reclaim property formerly used as a custom-house and under control of the Treasury Department are payable from the appropriation for repairs and preservation of public buildings.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 3, 1896.

SIR: I am in receipt of your letter of May 28, with reference to the payment of the expenses of sending an agent to visit Monterey, Cal,, to look after certain property formerly occupied by the custom-house, but not now used on account of the closing of the port of entry at that place. You state that on account of the uncertainty as to the exact boundaries of the property it has been occupied by squatters, who have erected shanties, etc., without permission and refuse to remove them. You ask from what appropriation the expenses of an agent visiting Monterey can be paid.

In reply I have the honor to inform you that the appropriation "Repairs and preservation of public buildings" is available for such expenses, as they will be incurred in the preservation of the custom-house, and that appropriation is made specifically for repairs and preservation of custom-houses, etc., under the control of the Treasury Department.

Respectfully, yours,

R. B. BOWLER,

The SECRETARY OF THE TREASURY.

Comptroller.

EXPENSES IN ERECTION OF MONUMENT TO MARK THE BIRTHPLACE OF WASHINGTON.

From the appropriation for a monument to mark the birthplace of Washington may be paid the incidental expenses incurred (with the approval of the Secretary of State) in erecting a fence and improving the small tract of land belonging to the Government on which the monument is located.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 3, 1896.

SIR: I am in receipt of your letter of the 1st instant, stating that the Secretary of State has authorized the grading and sodding of the ground immediately around the monument erected to mark the birthplace of George Washington and within 20 feet of its base, the construction of a gravel walk 6 feet wide around the monument, and the erection of a wire fence along the roadway and around the Government land, said roadway and land having been purchased from the appropriation made in the joint resolution of February 26, 1881 (21 Stat., 519), authorizing the erection of this monument. You ask whether such expenses will form a proper charge against the appropriation made in said joint resolution and whether if paid by you the vouchers therefor will be allowed in the settlement of your accounts.

The joint resolution of February 26, 1881, provided that the sum appropriated should "be expended under the direction of the Secretary of State" and provided for "the securement of a public right of way" to the monument. The grading and sodding of the ground immediately around the base of the monument, the making of a gravel walk, and the erection of a fence around the Government property exclusively used as a site for this monument and as a public way thereto, are clearly incidental to the erection of the monument authorized by the joint resolution, and the expense thereof is a proper charge against the appropriation therein made. As the Secretary of State has authorized these expenditures you will receive credit therefor in the settlement of your accounts. [See ante, p. 492]. Respectfully, yours,

Col. JOHN M. WILSON,

R. B. BOWLER,
Comptroller.

Corps of Engineers, United States Army.

APPROPRIATIONS FOR RIVER AND HARBOR IMPROVEMENTS.

The appropriations in the river and harbor act of June 3, 1896, being made immediately available, the amount appropriated for continuing the improvement of James River, Virginia, may be used to continue the work under the contract of December 11, 1894, which does not terminate until June 30, 1896.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 9, 1896.

SIR: I am in receipt, by your authority, of the reference of the Acting Chief of Engineers of the letter of Col. Peter C. Hains, Corps of Engineers, United States Army, of June 4, 1896, in which he states:

"Owing to a larger percentage of solid rock being found where disintegrated rock was expected under the contract (9322) dated December 11, 1894, with P. Sanford Ross, for work in James River, Virginia, the contract can not be entirely completed with funds from the appropriation of August 18, 1894, and unless otherwise directed it is proposed to allow the contractor to complete the excavation of rock provided for in the contract, and to pay for it with funds derived from the appropriation for James River in the river and harbor bill, which it is unofficially understood has just become a law."

In the river and harbor act of August 18, 1894 (28 Stat., 349), was the following provision:

"Improving James River, Virginia: Continuing improvement, one hundred thousand dollars."

In the recent river and harbor act of June 3, 1896, is the item:

"Improving James River, Virginia: Continuing improvement, one hundred and twenty thousand dollars."

The last-mentioned act, after the enacting clause, reads as follows:

"That the following sums of money be, and are hereby, appropriated, to be paid out of any money in the Treasury not otherwise appropriated, to be immediately available, and to be expended under the direction of the Secretary of War and the supervision of the Chief of Engineers, for the construction, completion, repair, and preservation of the public works here. inafter named."

From the above I am of the opinion that the funds appropriated in the recent river and harbor act are available for 11268-VOL 2—38