$467. You ask whether, in view of my decision of October 18. 1895 (ante, p. 203), you may properly pay the same. It appears from the correspondence submitted with your letter of the 15th instant that on April 1, 1895, the Superintendent of the Survey asked Mr. Kubel and others for proposals for furnishing sixty copper plates. On April 2 Mr. Kubel submitted his proposal and it was accepted by the Superintendent on April 13. On the 16th of that month Mr. Kubel acknowledged the receipt of the acceptance. The plates were delivered, part in the fiscal year 1895 and the balance during the present fiscal year, and you ask whether the bill is properly payable from the appropriation for the fiscal year 1895. In reply I have to advise you that you may pay the amount of the bill from the 1895 appropriation, for the reason that the papers clearly show that the plates were purchased under a contract properly made within the fiscal year 1895. Mr. Kubel's proposal and its acceptance by the Superintendent constituted a contract for supplies for the service of the fiscal year 1895 within the meaning of section 3690, Revised Statutes. Respectfully, yours, Mr. R. J. GRIFFIN, R. B. BOWLER, Comptroller. Disbursing Agent, Coast and Geodetic Survey. IN RE ACCOUNT OF HENRY S. FOOTE, UNITED STATES ATTORNEY FOR THE TRICT OF CALIFORNIA. NORTHERN DIS. A United States attorney is not entitled, under section 824, Revised Statutes, to a per diem fee for attending examinations before commissioners of complaining witnesses prior to the issuing of a warrant TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, November 18, 1895. The Auditor for the State and other Departments submits, for approval, disapproval, or modification by the Comptroller, the following decision making an original construction of a statute: "In his September quarter's account Mr. Foote makes numerous charges of per diems attending examinations before United States commissioners of charges made by complaining witnesses before warrant issued. Mr Foote claims that these charges are authorized by the seventh clause of section 824, Revised Statutes, which reads as follows: "For examination by a district attorney, before a judge or commissioner, of persons charged with crime, five dollars a day for the time necessarily employed.' 66 The Supreme Court, in the case of United States v. Patterson (150 U. S., 65), say: * * "A criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused and a prosecution initiated. In the eyes of the law a person is charged with a crime only where he is called upon in a legal proceeding to answer such charge. Mere investigation by prosecuting officers, or even the inquiry and consideration by examining magistrates of the propriety of initiating a prosecution, do not of themselves create a criminal charge." "As the clause of section 824, Revised Statutes, above quoted, only provides per diem fees for examinations of persons 'charged' with a crime, it does not appear to authorize the claim of Mr. Foote, and I know of no provision elsewhere for its payment. I therefore decide that the items can not be allowed, and submit this decision to the Comptroller of the Treasury under section 8, act of July 31, 1894." The foregoing construction of the seventh clause of section 824 of the Revised Statutes by the Auditor is hereby approved. R. B. BOWLER, Comptroller. IN RE CLAIM OF THOMAS J. VANOY FOR VALUE OF HORSE LOST IN THE MILITARY SERVICE. Claims arising under the act of March 3, 1849, and amendments thereof, and not filed in the proper Department prior to August 13, 1891, are forever barred, and can not be received, considered, or audited by any Department of the Government. (Acts of January 9, 1883, and August 13, 1888.) As an Auditor has no authority to receive, consider, or audit claims arising under the act of 1849, when filed on and after August 13, 1891, it follows that no appeal to this office from the action of the Auditor refusing to consider the same will be entertained. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, November 18, 1895. Thomas G. Vanoy, late of Company G, Ninth Kansas Cavalry, through his attorney, Edwin A. Vandeveld, of Coleman, Mo., appeals from the action of the Auditor for the War Department as evidenced by his decision (No. 33836) of April 4, 1895. This claim was presented March 30, 1895, under the act of March 3, 1849 (9 Stat., 414), and its several amendments, and was rejected by the Auditor for the reason that it was barred by the statute of limitations applicable to such cases. Section 2 of the act of January 9, 1883 (22 Stat., 401), provides: "That all claims arising under the act approved March third, eighteen hundred and forty-nine, entitled 'An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States,' and all acts amendatory thereof, which shall not be filed in the proper Department within one year from and after the passage of this act, shall be forever barred, and shall not be received, considered, or audited by any Department of the Government." Section 2 of the act of August 13, 1888 (25 Stat., 437), provides: "That the limitation heretofore imposed by law on the presentation by officers and soldiers of claims for loss of horses and equipments in the military services, during the late war, is hereby suspended for the period of three years." The effect of the act last above mentioned was to remove the bar to the receipt, consideration, or audit of certain claims arising under the act of 1849, and amendments thereto, so as to permit their "receipt, consideration, or audit," provided said claims were filed in the proper Department before August 13, 1891. On the last-mentioned date the act of January 9, 1883 (22 Stat., 401), was revived and in full force and effect, and no further extension of time for filing said claims has been found. The claim in question not having been filed in the proper Department (Treasury) before August 13, 1891, it will be seen from the law above quoted that there was no authority in any Department of the Government to either receive, consider, or audit the same. This is more than a mere statute of limitations, for it prevents even the reception of such a barred claim. Under its terms such a claim can not be filed in the Auditor's Office, or be in any way recognized. The proper course to pursue would seem to be to return forthwith such papers to the parties, calling their attention to the second section of the act of January 9, 1883, without any other action or record of the same being made, except a mere notation of the return of the papers. Although the Auditor has in form "disallowed" the claim because it is barred by the second section of the act of 1883, yet in effect this action of his is a refusal to "receive, consider, or audit" it as provided by the statute, and hence his action is to be treated not as a formal "rejection" from which an appeal will lie, but as a refusal to entertain the claim. Consequently the appeal will not be entertained, and the papers are herewith transmitted for the Auditor to return in accordance with the practice herein prescribed. EDW. A. Bowers, IN RE CLAIM OF ALBERT W. BISHOP FOR TRAVEL PAY. An officer discharged by acceptance of his resignation to enable him to accept a civil appointment is discharged for his own convenience, and is not entitled to travel pay. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, November 21, 1895. The claimant, A. W. Bishop, of Buffalo, N. Y., appeals from the decision of the Auditor for the War Department, as evidenced by his decision (No. 22747) of September 11, 1895, disallowing his claim for travel pay. He accepts the decision upon all other matters. He was mustered into service as second lieutenant First Wisconsin Light Artillery, September 3, 1861, and resigned October 10, 1861; was mustered into service as captain Second Wisconsin Cavalry, to date December 23, 1861, promoted to lieutenant-colonel First Arkansas Cavalry, July 10, 1862, and was discharged from said service at Washington, D. C., March 2, 1865, upon "his resignation dated Washington, D. C., February 22, 1865, tendered to enable him to accept appointment as adjutant-general of Arkansas," by Special Orders, No. 104, dated War Department, Adjutant-General's Office, Washington, D. C., March 2, 1865. His claim for travel pay on said discharge was disallowed upon the ground that "having resigned for his own convenience no traveling allowances are due." The claimant contends that he did not resign for his own convenience, but upon the earnest solicitation of the governor of Arkansas, who urged him to accept the position of adjutantgeneral of Arkansas as a patriotic duty, and that, after a per sonal conference with President Lincoln and as a result of that conference, he tendered his resignation as lieutenant-colonel and accepted the adjutant-generalship of Arkansas. His contention is a practical admission that if he had been discharged for his own convenience he would have no claim for travel pay under the law. (Sec. 15, act January 29, 1813; Rev. Stat., section 1289.) It has been uniformly held by the accounting officers that an officer or an enlisted man who is discharged upon his resignation or request for his own convenience is not entitled to travel pay (Digest Second Comp. Dec., vol. 1, sec. 2079; vol. 2, sec. 821, and vol. 3, sec. 1443), and that a discharge on the resignation of the officer or the request of an enlisted man to enable him to accept a civil office is for his own convenience. (B. P. B. D. 17: 254.) The claimant's resignation appears to have been treated as for his own convenience and so regarded by himself until May, 1895, when he filed his claim with the Auditor for the War Department. The action of the Auditor is affirmed and the claim for travel pay is disallowed. EDW. A. BOWERS, IN RE ACCOUNTS OF GEORGE W. SPROULE, CLERK UNITED STATES COURTS IN MONTANA. The act of July 31, 1894, allowing to the clerk of the courts in Montana, for services rendered during the fiscal year 1895, the same fees as are allowed by law to like officers in Oregon and Idaho authorizes him to charge and collect double the usual fees allowed to clerks of United States courts, but does not authorize him to retain for his personal use the double maximum compensation allowed to clerks in Oregon and Idaho. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, November 22, 1895. In the settlement of the accounts of George W. Sproule, clerk of the United States circuit court for the district of Montana, for the six months ending June 30, 1895, the Auditor for the State and other Departments, under date of November 15, 1895, rendered a decision making an original construction of a clause |
