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the drawings of public buildings from destruction by fire. But I do not think this use is sufficiently direct and exclusive to authorize the payment of the expenditures therefor from the various appropriations for the construction of public buildings specified by the Auditor.
The second decision by the Auditor is as follows:
"Under the act approved June 6, 1902, section 4 (32 Stat., 317, 319), and appropriations made thereunder, a voucher for $15 in favor of David Cook, for cleaning snow and ice from the sidewalk around the public building site at Gloversville, N. Y., for the season of 1903-4, has been charged against the appropriation Post-office, Gloversville, N. Y.
For the reasons set forth in the opinion of the law clerk of this office, which is inclosed herewith, I have decided that the expense of cleaning snow and ice from the sidewalk inclosing the vacant building site at Gloversville, N. Y., the said expenditure not being authorized by the appropriation act of June 6, 1902, supra, either specifically or by necessary implication, and not being, even in the remotest degree, necessary to carry into effect the purposes of the act, is not a proper charge against the appropriation 'Post-office, Gloversville, N. Y."
It is understood that the site of post-office building at Gloversville, N. Y., had been purchased and that preparations for the construction of the building thereon were in progress at the time the expenditure for cleaning snow and ice off the sidewalk around the building site was incurred, and that it was deemed by the Department appropriate to the proper care of the site to have the snow and ice removed.
It is a well-established principle that where an appropriation is made for a specific object, by implication it confers authority to incur expenditures which are necessary or appropriate or incident thereto, unless there is another appropriation which makes more specific provision for such expenditures, or unless they are prohibited by law. (6 Comp. Dec., 91, 490; 7 id., 714.) The question whether a particular expense is necessary or appropriate or incident to the object for which an appropriation is made is ordinarily one which is within the discretion of the head of the Department having control of the disbursement of the moneys appropriated. This is particularly true of any question of the necessity for or appropriateness of an expenditure, and, except as to unconscionable transactions or expenditures which are not for the object for
which the appropriation is made, or which are prohibited by other laws, the exercise of such discretion in relation to these particular questions, within the authority of law, is conclusive upon the accounting officers and the courts. (7 Comp. Dec., 32, 33.)
An express provision in an appropriation for every item of expenditure therefrom is not necessary, and frequently would be impossible. In United States v. Macdaniel (7 Pet., 14, 15), in considering a similar question, the court said:
"A practical knowledge of the action of any one of the great departments of the Government must convince every person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his discretion. He is limited in the exercise of his powers by the law; but it does not follow that he must show a statutory provision for everything he does. No government could be administered on such principles. To attempt to regulate by law the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out, and limitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined, and which are essential to the proper action of the Government."
The particular question in this case, therefore, is whether the keeping in good order of sidewalks around the site of a public building in course of construction is so clearly not within the. purpose of the appropriation providing for the site and the construction of the building that an expenditure therefor can not properly be regarded as necessary or appropriate or incident thereto. In 2 Comp. Dec., 592, it was held that under an appropriation providing for the erection of a monument to mark the birthplace of Washington, 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 the monument are clearly incidental to the erection of the monument.
The act of March 2, 1889 (25 Stat., 941), contains the following provisions:
"That hereafter no plan shall be approved by the Secretary of the Treasury for any public building authorized by Congress to be erected, until after the site therefor shall have
been finally selected; and he shall not authorize or approve of any plan for any such building which shall involve a greater expenditure in the completion of such building, including heating apparatus, elevators, and approaches thereto, than the amount that shall remain of the sum specified in the law authorizing the erection of such building, excluding cost of site."
It is understood that it has been the practice of the Department for many years to pay for the construction of sidewalks around the sites of public buildings from the appropriations made for the construction of such buildings, and I think the construction of the sidewalks in such cases are properly to be regarded as incident to the objects of the appropriations. To keep such sidewalks in such condition as to permit easy approach to the building while in course of construction must, I think, also be regarded as incident to the objects of the appropriation, and therefore properly within the discretion of the Department.
The decision of the Auditor is modified in accordance with the foregoing views.
EXTRA PAY TO ENLISTED MEN IN THE ARMY.
An enlisted man who was sick and incapacitated for duty prior to and during the whole of the furlough period of his company did not have the benefit of the furlough provided for by General Orders 130 of 1898, and he is entitled, therefore, to extra pay.
(Decision by Assistant Comptroller Mitchell, February 3, 1905.)
Thomas J. Hartson appealed January 19, 1905, from the action of the Auditor for the War Department in settlement dated December 24, 1904.
He claimed pay, clothing, travel allowances, and extra pay, as private, Troop. B, First Illinois Volunteer Cavalry.
The Auditor disallowed the claim because-
"Soldier was paid pay, clothing pay, and traveling allowances in full. As the records of the War Department show that he received the benefits of the entire period of regimental furlough under General Orders 130 of 1898, he is not entitled to any allowance on account of extra pay."
He enlisted April 26, 1898, at Bloomington, Ill., as a private, Troop B, First Illinois Volunteer Cavalry, and was
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mustered out as such with troop on October 11, 1898, at Springfield, Ill. He did not serve beyond the limits of the United States.
He has received pay in full for said service, including clothing to October 11, 1898, and travel allowances, and was overpaid pay from October 12, to November 1, 1898, inclusive.
He appeals from the disallowance of his claim for extra pay, and contends that he was in a sick status prior to and during the whole of the period of regimental furlough, and could not, therefore, have received the benefits thereof.
The muster-out roll reports him sick in hospital August 28 to 30, 1898.
The Military Secretary, War Department, reports that he was on sick furlough from August 30 to September 6, 1898, per General Orders 114, A. G. O., 1898, at Bloomington, Ill., (place of enlistment) and on furlough from September 7 to October 5, 1898, per General Orders 130, A. G. O., 1898, and that he was held in reserve for physical examination, by Secretary of War, under General Orders 169, A. G. O., 1898, to include November 1, 1898. His discharge, however, took effect on October 11, 1898, the date of muster out of his troop. (7 Comp. Dec., 499.)
General Orders 114 of 1898, under which he was granted sick furlough, provides that
"Sick or wounded soldiers sent to United States general or field hospitals will, when able to travel, be granted by the surgeons in charge one month's furlough and transportation to their homes."
The Military Secretary, January 31, 1905, reports that while said sick furlough can not be found, there is no record that it was ever canceled or that it was extended.
Claimant states that the nature of his illness was typhoid fever and that
"I reported to the mustering officer at Springfield, Ill., as soon as I was able to walk, for muster out of the service, as my regiment had been mustered out of the service some weeks previous."
The records and the evidence indicate that prior to and during the whole of the general furlough period claimant continued sick and incapacitated for duty and that said sickness was contracted in line of duty.
In Legg v. United States, No. 24656, decided by Court of Claims December 20, 1904, and which is not appealed, the court held in a case similar to this that
"The status of a soldier at the time the furlough period began governs in such cases. If the soldier was then sick and incapacitated for duty, whether with the regiment or in a hospital or at his home, he can not be considered as having received a furlough. If he became sick after the furlough period began, and after he had received a furlough, the sickness was his misfortune, and he can not be considered as then on duty."
Following the decision of the Court of Claims in the Legg case, supra, the action of the Auditor is reversed, and I find and certify a difference in favor of claimant of five dollars and twenty cents ($5.20), being one month's extra pay, $15.60, less overpayment of pay from October 12 to November 1, 1898, inclusive, $10.40, as per certificate of differences herewith.
The amount herein allowed is subject to such offset on account of payment of rations covering period from October 12 to November 1, 1898, as the Auditor may determine. This item was not included in the Auditor's settlement, supra.
PAY OF RETIRED WARRANT OFFICER OF THE NAVY ON ACTIVE DUTY.
Where a retired warrant officer of the Navy is placed on active duty under the provisions of the act of June 7, 1900, he is not entitled, in computing his pay, to be credited with any time subsequent to the date of his retirement.
(Assistant Comptroller Mitchell to A. J. Pritchard, pay director, U. S. Navy, February 4, 1905.)
I have received, through the Secretary of the Navy, your request of January 10, 1905, for a decision as to the rate of pay Warrant Machinist W. E. B. Grant, U. S. Navy, retired, is entitled to from January 3, 1905.
The facts are shown to be as follows:
Mr. Grant was enlisted in the Navy July 27, 1898; discharged December 16, 1898; reenlisted May 22, 1899, and appointed a warrant machinist November 1, 1901. He was placed on the retired list December 4, 1903, from the grade