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by their superior officers to specified duties by detail as other officers are, who are subject to the Rules and Articles of War, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may be finally dismissed on such trial from the service in disgrace, are still not in the military service."
And the court held that they were entitled to the increase of "current yearly pay" provided by section 1262 for a "commissioned officer.'
In Wood v. United States (107 U. S., 417), in considering the distinction between an "appointment" of an officer, which can only be made in the manner required by section 2, Article II, of the Constitution, and the placing of an officer of the Army on the retired list with a different "rank" from that held by him, the Supreme Court said:
"General Wood, holding the office of a colonel of cavalry in the Army, his retirement with the rank of major-general, under the act of 1868, did not confer on him the office of major-general. He remained in the office of colonel of cavalry, and acquired a higher rank and higher pay as a retired officer. Such rank not being an office, Congress could change his rank, and with it his pay, as it did by the act of 1875."
In view of these considerations, from which I think the conclusion is irresistible that officers of the Army on the retired list hold offices to which compensation is attached, within the meaning of section 2 of the act of July 31, 1894, supra, I think the general expressions by the Court of Claims in Geddes v. United States, supra, indicating that such officers do not receive "compensation," within the meaning of the provision in section 2 of the act of March 3, 1885, supra, prohibiting the payment from appropriations for the Department of Agriculture of "additional compensation," are not applicable to the question arising in the case under consideration herein.
DESIGNATION OF OFFICERS OF THE ARMY AS ACTING PAYMASTERS.
There is no provision of law authorizing the appointment or designation of officers of the Army as "acting paymasters," but, under section 3614, Revised Statutes, they may be designated as special disbursing officers.
The cost of foreign exchange arising from the advance of funds to disbursing officers should be borne by the Government, and the appropriations for the War Department not having specifically provided therefor, the cost thereof incurred in disbursing appropriations for pay and allowances and other appropriations for the Army should be paid from the appropriation "Contingencies of the Army."
The profit, if any, resulting from exchange should be credited to the appropriation "Miscellaneous receipts."
An advance of funds to a disbursing officer should be made by requisition direct from the Treasury, rather than by transfer from another officer. (Comptroller Tracewell to the Secretary of War, February 6, 1905.)
By your reference of the 18th ultimo, I am in receipt of a letter from the Paymaster-General, United States Army, dated January 5, 1905, wherein he states that
"Paragraph 16, Special Order 303, War Department, details ten officers as acting paymasters for service as such during the period of their detail as military attachés.
"It is presumed these details were made in order to permit officers serving abroad to receive their pay and allowances without having to stand a personal loss on account of the cost of exchange on the lines as suggested in decision of the Comptroller November 16, 1904, Circular 51, War Department, November 26, 1904.
"This office recommends that each officer have transferred to him by the Paymaster-General the sum of $5,000, current appropriation, to be placed to his credit with the assistant treasurer, United States, New York, and that he be furnished with an official check book on that depository; that such sums be transferred to him from time to time so that his available balance at no time shall be less than $3,000; that in addition to paying his own accounts he be authorized to pay the accounts of any officers traveling abroad under orders who may present such to him; that he be authorized, on the presentation of such an account, to draw his check to his own order 'in exchange for funds' for the amount of the vouchers plus the cost of exchange, and with the proceeds pay the amount of the voucher, taking receipts from the bank for the cost of exchange and accounting for same on his account current in the manner prescribed in the decision of the Comptroller quoted; and that the total amount of cost of exchange as shown on account current be charged to 'Contingent expenses, War Department,' in the settlement of the accounts of this office."
You request my decision as to the proper appropriation to be charged with the cost of exchange, and also as to the
method to be pursued in advancing funds to said disbursing agents.
There appears to be no law authorizing the appointment or designation of "acting paymasters." Section 3614 of the Revised Statutes does, however, authorize heads of Departments to designate persons as special disbursing agents, and if the persons so specially designated are officers of the Army or Navy they are not required to give bond. Inasmuch as this section prescribes a legal method of obtaining special disbursing agents, it seems to me that it should be followed, in order to avoid any legal complications that may arise through a departure from the method prescribed by law.
Where public funds are advanced to disbursing agents the cost of foreign exchange, if any, should be borne by the Government and not by said agents.
I am not aware of any specific appropriation for the payment of the cost of exchange incurred in making disbursements for your Department.
It is difficult, if not impracticable, to lay down any specific rule as to the appropriation to be charged with the cost of exchange, because circumstances might alter cases. The best I can do is to state the proposition in a general way, which is, that in the disbursement of funds under the control of the War Department for the military branch of the same the appropriation "Contingencies of the Army" would probably be available in most cases; but that there may be cases, as. for instance, where an appropriation is for the purchase of supplies, where that appropriation would be properly chargeable with the cost of foreign exchange, if any, where the money is advanced to disbursing agents.
In the case of the disbursement of the appropriations for pay and allowances I think that the appropriation "Contingencies of the Army" would be properly chargeable with the cost, if any, of foreign exchange.
In order to avoid the difficulties which seem necessarily to arise in this matter, I would suggest that Congress be asked to include in one of the appropriations, preferably "Contingencies of the Army," authority to use the same for the payment of foreign exchange, and also to carry to the credit of such appropriation any profit that may arise in connection with the same.
Attention is invited to the act of March 3, 1893 (27 Stat., 716), which provides—
"And hereafter the accounting officers of the Treasury are hereby authorized to credit appropriation Pay, miscellaneous,' with all receipts arising from sales of bills of exchange
While the question of the transfer of funds by the Paymaster-General to disbursing officers is ordinarily one of administration, still it seems to me desirable in all cases where it can be done that the advance should be made by requisition direct from the Treasury rather than through transfer from another officer. A better system of accounts can thus be maintained and the purpose of the general laws governing the rendition of accounts be better accomplished.
I desire to correct the statement in my decision of November 16, supra, to the effect that profit resulting from exchange should be credited in the officer's account to the proper appro priation for "Contingent expenses;" profit resulting from exchange should be credited to "Miscellaneous receipts."
ADVANCE OF FUNDS BY PUBLIC HEALTH AND
The advancement of funds by the Public Health and Marine-Hospital
Payment in advance for medical journals is prohibited by section 3648, Revised Statutes.
The act of March 3, 1901, having provided that Government employees detailed to duty in connection with the Government exhibit at the Louisiana Purchase Exposition should receive no compensation other than their regular salaries, actual traveling expenses, and the per diem in lieu of subsistence therein provided for, payment to an employee of the Public Health and Marine-Hospital Service while so detailed of an additional per diem in lieu of subsistence from the appropriation for said Service is not authorized.
28007 Vol. 11-05-28
(Decision by Comptroller Tracewell, February 8, 1905.)
On October 25, 1904, the Auditor for the Treasury Department settled the accounts of W. P. Worcester, special disbursing agent of the Public Health and Marine-Hospital Service, for disbursements from the appropriation “Public Health and Marine-Hospital Service" for the month ending July 31, 1904. Said settlement is now revised upon my own motion.
On January 6, 1905, a memorandum of exceptions was sent to the disbursing officer calling for explanations relative to a number of vouchers. Since then he has submitted explanations and evidence satisfactorily explaining the vouchers questioned, with the following exceptions:
Voucher 38. W. C. Rucker. Cash advanced seaman to defray incidental traveling expenses
It appears that said W. C. Rucker is an assistant surgeon of the Public Health and Marine-Hospital Service, and that at the request of the Bureau he advanced the sum in question to the seaman to defray his expenses for meals and other incidental expenses while traveling from Boston, Mass., to Fort Stanton, N. Mex., on transfer from one hospital to another.
Advances of this character are clearly prohibited by section 3648 of the Revised Statutes, which provides that no advance of public funds shall be made for any purpose whatever. (See 8 Comp. Dec., 688; MS. Dec., vol. 28, p. 909.) The disbursing officer would not have been authorized to advance to this seaman from public funds the sum advanced him by the assistant surgeon, and such advance can not be indirectly effected by authorizing the assistant surgeon to make it and then treating the advance per se as a valid indebtedness of the Government. This would be accomplishing by indirection what can not be done directly.
In a somewhat similar case in MS. Dec., vol. 28, p. 909, it was said:
"No officer of the Government has a right to ask a railroad company, or any other person, to furnish cash to any person for the purpose of paying expenses to be incurred."
But as the money was advanced by the officer to the seaman in good faith, and at the request of the head of the Bureau,