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vania Volunteer Infantry, for the amount of the judgment rendered in his favor by the Court of Claims, namely, $300, April 25, 1904, in case No. 23358, as two months' extra pay for service beyond the limits of the United States in the war with Spain, the question arises as to whether the amount of this judgment is payable out of the existing appropriation made by the act of January 12, 1899 (30 Stat., 784), or whether said amount must be reported to Congress for a specific appropriation for the payment of this judgment.

"The judgment in question is for extra pay under the act of January 12, 1899 (30 Stat., 784), as amended by the act of May 26, 1900 (31 Stat., 217).

"The officer's claim for extra pay had been disallowed by this office July 3, 1901.

"Section 1 of the act of January 12, 1899, makes a permanent appropriation, designated 'Extra pay to volunteers, war with Spain,' for the payment of extra pay to officers and enlisted men belonging to volunteer organizations mustered out of the service who have served honestly and faithfully, 'from any money in the Treasury not otherwise appropriated.' (See Dig. of Ap. for 1900, p. 193.)

"Section 7 of the act of July 31, 1894 (28 Stat., 207), provided, among other things, that

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"The Auditor for the State and other Departments shall receive and examine all accounts * relating to judgments of United States courts,

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Court of Claims

and its judgments.'

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"But the urgent deficiency appropriation act of February 18, 1904 (33 Stat., 15, 41), provides as follows:

"And hereafter in all cases of final judgments and awards rendered against the United States by the Court of Claims, and of final judgments rendered against the United States by the circuit and district courts of the United States, payment thereof under appropriations made by Congress shall be made on settlements by the auditor for the department or branch of the public service having jurisdiction over the subjectmatter out of which the claims arose.'

"A copy of the aforesaid judgment, certified by the clerk of the court and signed by the chief justice, has been filed in this office with a request for payment, together with a certificate of the chief clerk of the court that no appeal has been taken from the judgment, and that no motion by either party for a new trial, or to amend or correct the findings or judgment, is now pending.

"Section 1089 of the Revised Statutes provides as follows: "In all cases of final judgments by the Court of Claims, or, on appeal, by the Supreme Court, where the same are affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropriation made by law for the

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payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the Court of Claims, and signed by the chief justice, or, in his absence, by the presiding judge of said court.'

"The phrase 'appropriation for the payment of private claims, as used in said section, has been defined by the Court of Claims, in its opinion in Sweeney's case (5 Ct. Cl., 290), decided at the December term of 1869, as follows:

"An appropriation for the payment of "private claims" means an appropriation for claims which the executive departments have rejected, or of which they have no jurisdiction. The appropriation is for debts which were not to be paid out of the specific appropriations.'

"The deficiency appropriation act of September 30, 1890 (26 Stat., 537), provides as follows:

"That hereafter it shall be the duty of the Secretary of the Treasury to certify to Congress for appropriation only such judgments of the Court of Claims as are not to be appealed, or such appealed cases as shall have been decided by the Supreme Court to be due and payable.'

"In my opinion, this language clearly implies that it is the duty of the Secretary of the Treasury to certify to Congress the specified judgments of the Court of Claims, copies of which judgments have, under section 1089 of the Revised Statutes, been presented to said Secretary, certified by the clerk of the Court of Claims and signed by the chief justice, or, in his absence, by the presiding judge of said court.

"If this view is correct, the judgment is clearly not payable out of any general appropriation made by law for the payment and satisfaction of private claims.

"In support of the correctness of this view it may be noted that Congress has provided, in the deficiency appropriation act of April 27, 1904 (33 Stat., 394, 422), as follows:

"That hereafter estimates for the payment of all judgments against the United States, including judgments in Indian depredation claims and of United State courts, shall be transmitted to Congress through the Treasury Department as other estimates of appropriations are required to be transmitted.'

"The certification by the Secretary of the Treasury, under the act of September 30, 1890, of judgments of the Court of Claims to Congress for appropriation is in harmony with the system established by law, under which the Secretary of the Treasury reports the amount due each claimant whose claim has been allowed in whole or in part to the Speaker of the House of Representatives and the presiding officer of the Senate, who lay the same before their respective Houses for consideration.

"The provisions cited from the acts of September 30, 1890,

and April 27, 1904, are provisions extending the system referred to so as to include all judgments against the United States in the estimates of appropriations and estimates of deficiencies of appropriations intended for the consideration and seeking the action of the proper committees of Congress. In section 14 of the act of March 3, 1863 (12 Stat., 768), which is the act in which the provisions of section 1089, Revised Statutes, originally appeared, Congress provided as follows:

"That no money shall be paid out of the Treasury for any claim passed upon by the Court of Claims till after an appropriation therefor shall be estimated for by the Secretary of the Treasury."

"Since the passage of this provision, March 3, 1863, Congress has uniformly made specific appropriations for the payment of the judgments of the Court of Claims.

"The authority for estimates by the Secretary of the Treasury for appropriations for the payment of such judgments is, in my opinion, clearly contained in section 14 of the act of March 3, 1863, the provision cited from the act of September 30, 1890, continuing such authority with a limitation thereof to such judgments as are not to be appealed or to such appealed cases as shall have been decided by the Supreme Court to be due and payable.

"In view of the foregoing facts and considerations, I am of the opinion, and so decide, that the amount of the aforesaid judgment and of all similar judgments must be reported to Congress for a specific appropriation before payment thereof can legally be made. I am therefore of the opinion that said amount can not legally be paid from the appropriation Extra pay to volunteers, war with Spain,' made by the act of January 12, 1899 (30 Stat., 784; Dig. of Ap. for 1900, p. 193).

"As this decision involves an original construction of a statute, it will at once be transmitted to the Comptroller of the Treasury for his approval, disapproval, or modification under the provisions of the act of July 31, 1894.”

In view of the long-continued practice to this effect, based upon the act of March 3, 1863, the conclusion reached by the Auditor is approved.

EXTRA PAY TO ENLISTED MEN OF THE ARMY. The additional pay received by enlisted men of the Army for certificates of merit should be included in computing the extra pay provided by the act of January 12, 1899, for volunteers in the war with Spain. (Decision by Assistant Comptroller Mitchell, October 8, 1904.)

The Auditor for the War Department has submitted for approval, disapproval, or modification the following decision:

"In the examination of the claim for two months' extra pay of Joseph E. Reed, private, Company L, Forty-seventh U. S. Infantry Volunteers, the question arises whether the additional pay of $2 per month on a certificate of merit should be included.

"Section 1285, United States Revised Statutes, provides: "A certificate of merit granted to an enlisted man for distinguished service shall entitle him, from the date of such service, to additional pay at the rate of two dollars per month while he is in the military service, although such service may not be continuous.'

"Under this section a soldier is entitled to 'additional pay at the rate of two dollars per month. It is not contingent upon future service, nor is it an allowance which may or may not be earned, but a direct and certain amount to be added each month to the pay of his rank for service actually rendered. The Second Comptroller of the Treasury held that in computing the three months' extra pay, act of July 19, 1848 (9 Stat., 248), the additional pay of $2 per month should be included. (Sec. 948, vol. 3.)

"In a suit brought to recover three months' extra pay, act of 1848, the Court of Claims (19 Ct. Cl., 254) computed the extra pay at the rate he was receiving at the time of muster out, and Chief Justice Fuller, in delivering the opinion of the Supreme Court in that case (112 U. S., 513), said:

The pay they were to receive was evidently that which they were receiving at the end of their engagement or when they were honorably discharged. The language is "shall be entitled to receive three months' extra pay," evidently meaning the same pay they would have received if they had remained in the same service three months longer.'

The act of January 12, 1899 (30 Stat., 784), authorized the payment of two months' extra pay in lieu of furlough to the officers and enlisted men who served honestly and faithfully beyond the limits of the United States and were mustered out and discharged the service, evidently meaning the same pay they would have received if they had remained in

service two months longer and been paid at the rate they were receiving at date of discharge.

"This soldier, at the date of his muster out with his organization, was entitled to the pay of his rank and $2 additional pay for a certificate of merit, and if he had remained in service two months longer would have been so paid.

"In view of the foregoing I am of the opinion that in computing extra pay under the act of January 12, 1899, the $2 per month a soldier is entitled to receive at date of discharge for a certificate of merit should be included. The decision of the Comptroller of the Treasury (8 Comp., 407) has not been overlooked."

The decision of the Auditor is approved.

TRANSPORTATION OF EXCESS BAGGAGE OF OFFICER OF THE ARMY OVER LAND-GRANT RAILROAD.

There is no provision of law authorizing a deduction on account of land grant from the freight charges on baggage of an officer on change of station in excess of his authorized baggage allowance.

There is no provision of law authorizing the Government to undertake and assume liability for the shipment of purely private property of its officers or agents.

(Decision by Assistant Comptroller Mitchell, October 13, 1904.)

The Illinois Central Railroad Company appealed September 20, 1904, from the action of the Auditor for the War Department in settlement dated September 8, 1904.

The company claimed $30 gross, $28.13 net, for the transportation of Government property and personal effects of Capt. W. M. Wright, U. S. Army, in January, 1904, from Evanston, Ill., to East St. Louis, Ill., on the change of station of said officer.

The shipment consisted of 1,020 pounds of Government property (professional books) and 10,757 pounds of personal baggage of Captain Wright.

The Auditor disallowed $1.27, being the difference between the land-grant deduction on the entire shipment of 11,777 pounds and that on the Government property, 1,020 pounds, plus the officer's authorized baggage allowance of 6,000 pounds, the Auditor basing his disallowance on a decision of this Office reported in 2 Comptroller's Decisions, 415.

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