fulfilling all reasonable requirements for submarine warfare and shall have been fully tested to the satisfaction of the Secretary of the Navy. To carry out the purpose aforesaid, the sum of eight hundred and fifty thousand dollars is hereby appropriated out of any money in the Treasury not otherwise appropriated; and to make up said sum of eight hundred and fifty thousand dollars, the sum of five hundred thousand dollars carried, or such parts thereof as may remain unexpended, and authorized in the naval appropriation act, approved March third, nineteen hundred and three, is hereby reappropriated.'

In view of the history and apparent purposes of this provision, and particularly in consideration of the fact that changes and improvements of an important character are in progress in connection with the production of vessels of the submarine type, and for other reasons, this Department contemplates entering into contracts at this time which would involve the expenditure of a portion only of the full sum of $850,000 appropriated by Congress for this purpose. If this appropriation is an 'annual' one, the time within which all contracts thereunder must be concluded will, of course, lapse on the 30th of June, 1905. If, however, it is a 'permanent specific appropriation' (3 Comp. Dec., 625) it is understood that this Department may take such time as is found to be necessary in order to make provision for further preliminary tests of the character authorized by this act, and to avail itself of any advantageous developments due to present activities in this branch of naval construction.

"Under these circumstances your decision is requested as to whether the appropriation of $850,000 made by the act of April 27, 1904, is intended merely for use during the fiscal year 1905, or whether it may be applied to the objects for which it was made without respect to the fiscal year."

In the act of March 3, 1903 (32 Stat., 1202), it was provided:

"The Secretary of the Navy is hereby authorized, in his discretion, to contract for or purchase subsurface or submarine torpedo boats in the aggregate of, but not exceeding, five hundred thousand dollars: Provided, That prior to said purchase or contract for said boats any American inventor or owner of a subsurface or submarine torpedo boat may give reasonable notice and have his, her, or its subsurface or submarine torpedo boat tested by comparison or competition, or both, with a Government subsurface or submarine torpedo boat or any private competitor, provided there be any such, and thereupon the board appointed for conducting such tests shall report the result of said competition or comparison, together with its recommendations, to the Secretary of the Navy, who may purchase or contract for subsurface or submarine torpedo boats in a manner that will best advance the

interests of the United States in submarine warfare: And provided further, That before any subsurface or submarine torpedo boat is purchased or contracted for it shall be accepted by the Navy Department as fulfilling all reasonable requirements for submarine warfare and shall have been fully tested to the satisfaction of the Secretary of the Navy. To carry out the purpose aforesaid, the sum of five hundred thousand dollars is hereby appropriated out of any money in the Treasury not otherwise appropriated."

The act of April 27, 1904, in making provision for subsurface and submarine torpedo boats, as quoted in your letter, supra, carries an appropriation of $850,000 for that purpose, and contains this language:

"to make up said sum of eight hundred and fifty thousand dollars, the sum of five hundred thousand dollars, or such parts thereof as may remain unexpended, and authorized in the naval appropriation act approved March third, nineteen hundred and three, is hereby reappropriated.'

The question presented by you may be thus stated: Is the appropriation thus made by the act of April 27, 1904, “an annual" one, available only until the expiration of the fiscal year 1905, or is it a "permanent specific appropriation," available, without regard for fiscal year, until expended?

A very similar question was considered at length by Comptroller Bowler in a decision by him to the Secretary of Agriculture (3 Comp. Dec., 623 et seq.), in which he said (page 625):

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"In my opinion, a permanent specific appropriation' has been correctly defined by Comptroller Lawrence, as follows: "A permanent specific appropriation' is one which requires the money payable by virtue of it to be applied to an object specifically pointed out by law, and which may be so applied at any time in the future, and not merely for the service of the current fiscal year. It exists when the act of Congress which made it points out the purpose to which it applies, and shows that it was intended to be used in the future without limit as to the time. If the object to which it is to be applied has no reference to or connection with the service of any particular year, the appropriation may be construed as permanent, where such intention is apparent in the act making it. If it be for the discharge of an existing obligation, having no connection with the service of the current year, and not in part discharge of a continuous service, it may reasonably be supposed that Congress intended the liability to be paid without reference to time." (2 Lawrence Comp. Dec., 2 ed., 246.)

In the same decision it was said, page 628

"When it is intended that an appropriation made in an annual appropriation act shall be permanent and not limited to a particular fiscal year, Congress has no difficulty in expressing its intention by adding thereto the words 'to be available until expended,' or words of similar import, as is constantly done."

In the act here under consideration, Congress has not said that the money thereby appropriated shall remain available until expended, nor has it used any term of similar import. On the contrary, it would appear that Congress has, by the language used, recognized the appropriation made by the act of March 3, 1903, as an annual one, and, to prevent the unexpended balance thereof from reverting to the Treasury, has deemed it necessary as well as proper that such unexpended balance be reappropriated for the same purpose in the suc ceeding fiscal year.

The use of the word "reappropriate" in this connection is not without significance. For, unless a contrary intent or different conditions be contained in the second act, the reappropriation of moneys for a certain purpose would ordinarily mean that such money is again made available for the same purpose, an equal length of time, and under the same general conditions as prescribed in the first act.

I am therefore constrained to hold that the appropriation in question is an annual appropriation and its expenditure limited by the provisions of section 3690 of the Revised Statutes, but I do not understand that it follows that "the time within which all contracts thereunder must be concluded will, of course, lapse on the 30th of June, 1905," if you mean, as I understand by the word "concluded" as used in your letter, to limit the use of annual appropriation to payments for work actually completed or things actually delivered under contracts properly made within a fiscal year, to such completed work or things delivered, in a particular fiscal year.

A balance remaining of an annual appropriation at the end of the fiscal year for which it was made remains available for a period of two years after the close of such fiscal year for payments of expenses properly incurred during such fiscal year or in the fulfillment of contracts properly made within such fiscal year, although the work or thing properly contracted for during the fiscal year may not be delivered or finished during such year.

COMPUTING INCREASED PAY FOR FOREIGN'

SERVICE.

The term "pay proper," as used in the acts of April 26, 1898, May 26, 1900, and March 2, 1901, is equivalent to "pay;" hence the 20 per cent increase of "pay proper" allowed under said acts to enlisted men, accruing during their third year of continuous service, should be computed on the minimum pay of their grade with continuous service increase instead of upon the minimum pay alone as heretofore.

(Decision by Assistant Comptroller Mitchell, March 16, 1905.)

James Voiles appealed December 27, 1901, from the action of the Auditor for the War Department in settlement dated August 7, 1901, wherein his claim for pay as private, Company A, Thirty-seventh U. S. Volunteer Infantry, was disallowed because "paid * * in full."

*

He enlisted in the Philippine Islands July 16, 1899, as a private, Company A, Thirty-seventh U. S. Volunteer Infantry; left the Philippines January 10, 1901; arrived in San Francisco, Cal., February 6, 1901, and was mustered out February 20, 1901.

He had previously served as a private, Companies G and D, First Tennessee Infantry, from June 11, 1898, to July 15, 1899. His third year of continuous service therefore began June 11, 1900. From June 11, 1900, to January 10, 1901, he was serving in the Philippine Islands in his third year of continuous service in the Army.

He has received in full the minimum pay of his grade, $13 per month (sec. 1280, Rev. Stat.), together with $1 per month additional during the third year of his continuous service (sec. 1281, Rev. Stat.).

In addition to the pay above stated he has received for the period of his service in the Philippine Islands, viz, July 16, 1899, to January 10, 1901, 20 per cent of the minimum pay of his grade, $13, amounting to $2.60 additional per month.

The question now for determination is as to whether that portion of the 20 per cent increase of his "pay proper" allowed to him for service in the Philippines under the acts of April 26, 1898, and May 26, 1900, which accrued during the third year of his continuous service, to wit, from June 11, 1900, to January 10, 1901, was correctly computed, or whether, instead of being computed on the minimum pay alone of his

grade, $13 per month, it should have been computed on the minimum pay with continuous service increase, $1 per month, or $14 per month, making his increased pay for service in the Philippines during said period $2.80 per month instead of $2.60 as heretofore paid to him; or, in other words, whether the term "pay proper" as used in said acts means minimum pay alone, or minimum pay with continuous service increase. The act of April 26, 1898 (30 Stat., 365), provides—

"That in time of war the pay proper of enlisted men shall be increased twenty per centum over and above the rates of pay as fixed by law."

That of May 26, 1900 (31 Stat., 211), provides

"That hereafter the pay proper of all officers and enlisted men serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and in the Territory of Alaska shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law in time of peace."

The act of March 2, 1901 (31 Stat., 903), further provides: "That hereafter the pay proper of all officers and enlisted men serving beyond the limits of the States comprising the Union, and the Territories of the United States contiguous thereto, shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time. of such service shall be counted from the date of departure from said States to the date of return thereto."

In the case of United States v. Mills, decided by the Supreme Court March 13, 1905, a similar question was presented, viz: As to whether the 10 per cent increase of "pay proper" allowed to officers under the acts of May 26, 1900, and March 2, 1901, supra, should be computed upon the minimum pay alone of their grade (sec. 1261, Rev. Stat.), or upon the minimum pay with longevity increase (sec. 1262, Rev. Stat.). The court there interpreted the words "pay proper" to mean "compensation, which may properly be described or designated as 'pay,' as distinguished from allowances, commutation for rations, or other methods of compensation not specifically described as pay," and held specifically that the 10 per cent increase of "pay proper" provided for by the acts of May 26, 1900, and March 2, 1901, should be computed on the mini