viding that such detailed clerks are entitled to their per diems during their necessary absence from the Census Office, understood that Sundays and legal holidays would intervene while they were on such detail, and it could not be seriously contended that such clerks are not necessarily absent from the Census Office within the purview of this law on such days.

I am therefore of the opinion that Congress intended them to have such per diem in lieu of subsistence when they are actually engaged in field duties, the duties they are detailed to perform, or during such temporary occasions as they are not so engaged, such as Sundays or holidays, which were evidently in the mind of Congress when such legislation was enacted; but on mature reflection I am satisfied that it was not the intent of Congress, in using the language it did, to authorize such payments either when the clerk so employed, for his own convenience or on account of his misfortune in being sick, fails to perform for a substantial period of time the duties for which he is detailed.

Mr. Boyle failed on account of sickness to perform the duties for which he was detailed for a substantial period of time, and during such time he is not entitled to subsistence any more than he would have been if without excuse he had not been in the performance of his duties, or if he had been on his leave of absence during said time, and ought not to be considered necessarily absent from the Census Office during said period within the purview of said law.

I know of no better way to correct a mistaken decision and the evil results naturally flowing from it than to disavow it on the first opportunity. The decision of June 3, 1903, wherein it differs from this one, is overruled.

You are not authorized under the facts in question to pay Mr. Boyle per diems for the days he was sick and not in the performance of his duties for which he was detailed.

28007 Vol. 11-05-10

REFUNDMENT OF AN AMOUNT PAID AS EXCESSIVE POSTAGE.

There is no provision of law authorizing the refundment, by the issuing of postage stamps, of an amount paid as excessive postage.

(Comptroller Tracewell to the Postmaster-General, September 19, 1904.)

In your communication of September 14, 1904, you request. my decision of a question which you therein present as follows:

“During 1902 a number of railway guide publications were excluded from the second class of mail matter upon the ground that they did not conform in character to the requirements of the law.

"The publishers of certain of those publications petitioned the supreme court of the District of Columbia for writs of mandamus to compel the Postmaster-General to accept copies of such publications for mailing at the second-class rates of postage as theretofore.

"The writs of mandamus were issued by that court in due form, and such action having been sustained by the court of appeals of the District of Columbia, an appeal was taken by this Department to the Supreme Court of the United States, and the publishers were informed by this office that:

"If the decision of the final court is to the effect that the Department's classification of such publications as third-class matter is erroneous and unauthorized under the statutes, you may rest assured that every effort will be made to make good any loss which may be shown to have been incurred by you because of such action by this Department."

"The cases were subsequently withdrawn by the Department before being reached on the Supreme Court calendar, and several of the publications were reinstated in the second class of mail matter.

"It is now proposed by this office, as a matter of justice to the publishers, if under the law such action is proper, to refund the excess of the postage at the third-class rate, prepaid by stamps affixed, on mailings of the publications during the period of their wrongful exclusion from the second class of mail matter over the postage chargeable at the second-class rates.

The publishers of several of the publications which have been reinstated have submitted to the Department their claims covering the amount of such excess postage.

"The evidence submitted in the cases of 'Wood's Official Railway Guide,' published at Detroit, Mich., and Bullinger's Monitor Guide,' published at New York, N. Y., is submitted herewith for consideration.

"In this connection it should be understood that this Department is constantly authorizing refunds of overcharges and improper collections of postage. The postmaster is directed to make the refund in postage stamps, taking therefor the receipt of the person to whom such refund is made. Upon receipt of the proper vouchers showing that the refunds have been made as authorized, this office requests the Auditor for the Post-Office Department to credit the account of the postmaster with the amount refunded.

"I have, therefore, the honor to request that you render a decision as to whether, in your opinion, it is proper under the law for this Department to authorize the postmasters to refund to the publishers of publications on which the third-class_rate was demanded and paid, an amount of postage over and above the second-class rates to which the publications were entitled. "Please cause to be returned, with the opinion in this matter, the evidence which is submitted herewith."

I am not aware of any provision of law which authorizes the refundment of postage paid in excess, or of any appropriation providing for such refundment, and I do not think such refundment can properly be paid out of the postal revenues without specific provision therefor.

Section 407 of the Revised Statutes, as amended by the act of January 22, 1894 (28 Stat., 28), provides as follows:

"The postal revenues and all debts due the Post-Office Department shall, when collected, be paid into the Treasury of the United States under the direction of the PostmasterGeneral, and the Treasurer, Assistant Treasurer, or designated depository receiving such payment shall give the depositor a duplicate receipt therefor, to be retained by him in his office as a voucher, and shall forward the original to the Auditor of the Treasury for the Post-Office Department, to be placed to the credit of the depositor in audit of his accounts."

Section 3674 of the Revised Statutes provides that payments of money out of the Treasury on account of the postal service shall be in pursuance of appropriations made by law; and section 4054 provides that the money required for the postal service in each year shall be appropriated by law out of the revenues of the service.

Exceptions to these provisions, have, however, been made by the following sections of the Revised Statutes:

"SEC. 3860. The Postmaster-General may allow to the postmaster at New York City, and the postmasters at offices of the first and second classes, out of the surplus revenues of their respective offices-that is to say, the excess of box rents and commissions over and above the salary assigned to the office, a reasonable sum for the necessary cost of rent, fuel, lights, furniture, stationery, printing, clerks, and necessary incidentals to be adjusted on a satisfactory exhibit of the facts, and no such allowance shall be made except upon the order of the Postmaster-General.

"SEC. 3861. The salary of a postmaster, and such other expenses of the postal service authorized by law as may be incurred by him, and for which appropriations have been made, may be deducted out of the receipts of his office, under the direction of the Postmaster-General.

*

* *

"SEC. 4050. And the Postmaster-General shall cause to be placed to the credit of the Treasurer of the United States, for the service of the Post-Office Department, the net proceeds of the money-order business."

*

*

*

Section 3926, as amended by the acts of February 27, 1897 (29 Stat., 599), and March 3, 1903 (32 Stat., 1174), provides for the payment out of the postal revenues of indemnity for losses by senders of first-class registered matter through the mails.

"SEC. 4058. Whenever the Postmaster-General is satisfied that money or property stolen from the mail, or the proceeds thereof, has been received at the Department, he may, upon satisfactory evidence as to the owner, deliver the same to him."

None of these exceptions are applicable to the question under consideration.

The following provisions of the Revised Statutes pertain to the collection of postage on second-class matter.

"SEC. 3896. Postage on all mail matter must be prepaid by stamps at the time of mailing, unless herein otherwise provided for.

"SEC. 3884. Where packages of newspapers or other periodicals are received at a post-office, directed to one address, and a list of the names of the subscribers to whom they belong, with the postage for a quarter in advance, is handed to the postmaster, he shall deliver such papers or periodicals to their respective owners.

67 SEC. 3906. On newspapers and other periodicals sent from a known office of publication to regular subscribers, the post

age shall be paid before delivery, for not less than one quarter, nor more than one year; which payment may be made either at the office of mailing or delivery, commencing at any time; and the postmaster shall account for such postage in the quarter in which it is received.

"SEC. 4051. All postages, box rents, and other receipts at post-offices shall be accounted for as part of the postal revenues; and each postmaster shall be charged with and held accountable for any part of the same, accruing at his office, which he has neglected to collect, the same as if he had collected it."

The act of June 13, 1898 (30 Stat., 443), also contains the following proviso:

"Provided, That after the thirtieth day of June, eighteen hundred and ninety-eight, the use of newspaper and periodical stamps may be discontinued; and all postage on second-class matter mailed shall be collected and accounted for under such regulations as the Postmaster-General may prescribe: And provided further, That this shall in no manner be construed so as to repeal the present law requiring prepayment of postage upon second-class mail matter."

These provisions of law require that postage on second-class mail matter shall be paid at the time of mailing or before the delivery thereof; that the moneys so collected shall be deposited in the Treasury; and that they shall be withdrawn therefrom only in pursuance of an appropriation made by law. It thus appears that there is no authority of law for the refundment of money paid for postage in excess of the requirements of law.

You say in your communication

"In this connection it should be understood that this Department is constantly authorizing refunds of overcharges and improper collections of postage. The postmaster is directed to make the refund in postage stamps, taking therefor the receipt of the person to whom such refund is made. Upon receipt of the proper vouchers showing that the refunds have been made as authorized, this Office requests the Auditor for the Post-Office Department to credit the account of the postmaster with the amount refunded."

Sections 3914 and 3918 of the Revised Statutes provide as follows:

"SEC. 3914. The Postmaster-General shall prepare postage stamps of suitable denominations, which, when attached to