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authorized the commanding officer of marines at Annapolis to hire such quarters. This is the authority referred to as having been filed with vouchers for September, 1902. A copy is inclosed herewith.

*2. Under date of 9th instant the post quartermaster, Marine Barracks and School of Application, Annapolis, Md., informed this office:

"I have been informed by Lieutenant Hayes that his wife occupied various quarters from August 1, 1903, to July 14, 1904, while he was at the United States general hospital, Fort Bayard, N. Mex. There is no record at this post as to where these quarters are located and who the real owners

were.""

There is no evidence that the commanding officer, or any one else authorized to do so, hired quarters for Lieutenant Hayes after his departure for the United States general hospital. His claim for reimbursement of the cost of two rooms at $12 per month during his absence negatives any presumption that quarters were hired for him. As the appropriation is for furnishing quarters in kind only it gives no authority to reimburse any sum for quarters when not furnished in kind. I am therefore of opinion that you are not warranted in paying Lieutenant Hayes's claim.

MONEY PRIZES TO ENLISTED MEN OF THE MARINE CORPS FOR EXCELLENCE IN GUNNERY PRACTICE.

The appropriation made in the act of March 3, 1903, for prizes for excel

lence in gunnery exercises and target practice in the naval service, is not applicable to prizes for enlisted men of the Marine Corps who are members of gun crews.

(Assistant Comptroller Mitchell to the Secretary of the Mary,

November 21, 1904.) I have received by your reference of 10th instant, requesting my decision in the matter presented, the following communication to you from Paymaster B. P. DuBois, U.S. Navy, dated Cavite, P. I., September 14, 190+:

“1. Having been directed by the commanding officer of this vessel to pay prizes for excellence in gunnery to certain enlisted men of the Marine Corps designated by the Bureau of Navigation, payment to be made under the appropriation

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Gunnery exercises, 1904,' I have the honor to request a decision by the Comptroller of the Treasury as to whether this Nary appropriation is available for the payment of prizes to marines.

“2. If it be not available, I request to be informed as to what appropriation is to be used for this purpose.

The Chief of Bureau of Navigation, by his indorsement, states: * Prizes in the naval service are awarded to

gun

for excellence of scores, the amount of these prizes being divided among the members of the gun crew. These prizes are in no sense extra pay, being offered merely as an incentive to competition. It frequently happens that gun crews are composed of marines, and the Bureau is of the opinion that they should come under the same category, in so far as sharing prize money is concerned, as gun crews composed of enlisted men of the Narr.

“For years past prizes for excellence in small-arm practice have been awarded indiscriminately to naval or marine officers, and to enlisted men of the Navy or enlisted men of the Marine Corps.

“The Bureau considers that the appropriation ‘Gunnery exercises' is available for the payment of prizes to marines for excellence in gunnery practice.

The prizes referred to are sums of money fixed by the Secretary of the Navy and offered to guns' crews on vessels of the Navy to encourage efficiency in practice with the ships' guns.

It appears by regulations, articles 1045 and others, that marines attached to vessels of the Navy are assigned for duty at the guns and necessarily cooperate with the enlisted men of the Navy.

The appropriation referred to is in the appropriation act for the naval service and is as follows (32 Stat., 1178):

"Gunnery exercises: Prizes for excellence in gunnery exercises and target practice; diagrams and reports of target practice; for the establishment and maintenance of targets and ranges; for hiring established ranges, and for transportation to and from ranges, one hundred and twenty thousand dollars.”

It has been the general custom in legislation to make separate and distinct appropriations for the Marine Corps, and when it is the intention that that corps shall share in any appropriation for the Navy it is shown by naming it. Such is the case with the appropriations for the Medical Department of the Navy, and for provisions and commuted rations in which marines share when on duty on vessels of the Navy. It is reasonable to believe, therefore, that if Congress had intended this appropriation to apply to the Marine Corps it would have been so specified.

A fact which is quite conclusive that Congress did not intend the Marine Corps to share in this appropriation is that an appropriation made for that corps has the same object in view. Under “Military supplies, Marine Corps" (32 Stat., 1200), one item is “Purchase and marking of medals for excellence in gunnery and rifle practice."

Efficiency in gunnery is the purpose of both appropriations, but for marines the prizes are limited to medals and no provision made for money prizes. It is not for me to search for the reason for the difference in the treatment of the men of the two services who practice with the same guns, but I must be governed by the law as I find it. If a mistake has been made in the legislation, Congress can readily correct it.

For the reasons shown, I am of opinion that the Navy appropriation for gunnery exercises is not available for prizes to men of the Marine Corps, and I know of no appropriation that can be used to give prizes of money to marines.

LIMITATION UPON EXPENDITURES FOR SUPPORT

OF CERTAIN INDIAN SCHOOLS.

Under the terms of the appropriation made in the act of March 3, 1903, for

the support of certain Indian schools, said schools are not authorized to spend in excess of $167 per capita per annum for the support and education of its pupils, except when the attendance is so reduced by epidemic, accident, or other sufficient cause as to render a larger per

capita expenditure absolutely necessary. (Decision by Assistant Comptroller Mitchell, November 22,

1904.) The Auditor for the Interior Department, November 8, 1904, submitted for approval, disapproval, or modification, an original construction of a statute, as follows:

“I have before me for examination and settlement, claims amounting to $1,334.49 for net beef furnished the Indian service during the fiscal year 1904, by John H. Roberts, of Flandreau, S. Dak., under contract of May 1, 1903. Of the total amount claimed, $1,185.60 is for the value of beef furnished the Flandreau Indian School, South Dakota, payment of which has been approved by the Commissioner of Indian Affairs from the appropriation 'Indian school, Flandreau, S. Dak., 1904.'

“A record showing the average attendance at the Flandreau school, and an account of disbursements for support and education under the appropriation therefor, for the fiscal year 1904, shows that there is an available balance of $342 in the Treasury, of the per capita expenditure authorized by act of March 3, 1903. Therefore, unless the case comes within the exception, the provision of that act “That not more than one hundred and sixty-seven dollars shall be expended for the annual support and education of any one pupil in any school herein specifically provided for,' precludes the payment, from the appropriation in question, of a balance of $8+3.60 of the total amount due claimant.

"October 20, 1904, the Assistant Secretary of the Interior, in a letter addressed to the Commissioner of Indian Affairs, said:

***Congress having made provisions for the exercise of discretion in cases of epidemic, accident, “or other sufficient cause,” where a larger per capita expenditure is necessary for the efficient operation of the school affected, I am of the opinion that the facts in this case justify an expenditure in excess of the per capita provided by law, and such excess expenditure is hereby approved for whatever amount is necessary, provided the total amount appropriated for the school for the fiscal year 1904 shall not be exceeded.'

"The language of the act from which the honorable Assistant Secretary of the Interior derives his authority for the allowance of a larger per capita expenditure is as follows:

** That all expenditure of money appropriated for school purposes in this act shall be at all times under the supervision and direction of the Commissioner of Indian Affairs, and in all respects in conformity with such conditions, rules, and regulations as to the conduct and methods of instruction and expenditure of money as may be from time to time prescribed by him, subject to the supervision of the Secretary of the Interior: Provided, That not more than one hundred and sixtyseven dollars shall be expended for the annual support and education of any one pupil in any school herein specifically provided for, except when, by reason of epidemic, accident, or other sufficient cause the attendance is so reduced that a larger expenditure is absolutely necessary for the efficient operation of the school affected, when the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, may allow a larger per capita expenditure.' (See Act Mar. 3, 1903, 32 Stat., vol. 1, p. 1006.)

“All correspondence relating to the subject is transmitted herewith for your consideration. From this it appears that the reason for the Assistant Secretary's authority to the Commissioner is based on the fact that a period of excessively cold weather occasioned an increased and unusual outlay for coal during the year, rather than on a reduction in attendance.

"I hold that under the proviso of the act a reduction in attendance is a condition precedent which must be shown to exist before any authority to increase the per capita expenditure arises. I therefore decide that only such an amount of the per capita appropriation as remains unexpended under the appropriation "Indian school, Flandreau, S. Dak., 1904,' to wit, $342, can be applied in settlement of these claims, and the balance $813.60 should be and the same is disallowed.”

The language of the proviso in the act of March 3, 1903, quoted supra, does not seem susceptible of other interpretation than that given by the Auditor. Where an epidemic, accident, or other sufficient cause effects a material reduction in attendance, while the cost of superintendence, instruction, heating the buildings, and other current expenses are not commensurately reduced, it is manifest that the per capita cost of the support and instruction of pupils is increased, and such increased cost, and only such, appears to be within the meaning of the exception in the proviso. If the language of the exception had been, “ When by reason of epidemic, accident, or other sufficient cause, a larger expenditure is absolutely necessary,” etc., omitting the words the attendance is so reduced that," the contention of the Commissioner of Indian Affairs would be cogent, but I do not think these essential and ruling words in the statute can properly be read out or ignored in a decision. No allegation is made that a larger expenditure was made necessary because of a reduction in attendance resulting from epidemic, accident, or other sufficient cause. On the contrary, in a letter dated November 19. 1904, in response to an inquiry from this office dated November 12, 1904, the Secretary of the Interior said:

“In reply, you are respectfully informed that the letter of October 20, 1904, to the Commissioner of Indian Affairs authorizing an expenditure in excess of $167 per capita for the said school, was written under a misapprehension of the facts in the case, and that the excess of per capita expenditure was not the result of a reduction in the attendance caused by epidemic, accident, or other sufficient cause.'”

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