You request my decision on the question submitted to you by the Chief of the Bureau of Equipment.

Section 3679 of the Revised Statutes provides:

"No department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract for the future payment of money in excess of such appropriations."

Section 3732 of the Revised Statutes provides:

"No contract or purchase in behalf of the United States shall be made unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.'

Attorney-General Devens, in an opinion rendered the President March 21, 1877 (15 Op. Att. Gen., 209), construing the above sections, said:

"These sections being construed together, section 3732, as quoted, confers by implication upon the heads of the War and Navy Departments authority, even in the absence of any appropriation, to purchase or contract for clothing, subsistence, forage, fuel, quarters, or transportation, not exceeding the necessities of the current year. Although exceptional and negative in its form, this provision in regard to contracts for clothing, etc., is to be deemed affirmative in its character, and the general provisions of section 3679 do not operate to exclude contracts for the purposes thus enumerated." (Floyd Acceptance, 7 Wall., 684.)

(See also Bradley v. United States, 155 U. S., 104.)

The above sections, interpreted together, forbid the making of a contract or purchase on behalf of the Government unless the same is authorized by law or is under an appropriation adequate to its fulfillment; but to the restrictions imposed by said sections Congress has excepted in the War and Navy Departments contracts for and purchases of clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.

Section 4 of act approved March 3, 1905 (Public No. 217), entitled "An act making appropriations to supply deficiencies in the appropriations for the fiscal year ending June thirtieth,

nineteen hundred and five, and for prior years, and for other purposes," provides:

"That section thirty-six hundred and seventy-nine of the Revised Statutes of the United States is hereby amended to read as follows:

"SEC. 3679. No Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. Nor shall any Department or officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. All appropriations made for contingent expenses or other general purposes, except appropriations made for the fulfillment of contract obligations expressly authorized by law or for objects required or authorized by law without reference to the amounts annually appropriated therefor, shall, on or before the beginning of each fiscal year, be so apportioned by monthly or other allotments as to prevent undue expenditures in one portion of the year that may require deficiency or additional appropriations to complete the service of the fiscal year; and all such apportionments shall be adhered to except when waived or modified in specific cases by the written order of the head of the Executive Department or other Government establishment having control of the expenditures; but this provision shall not apply to the contingent appropriation of the Senate or House of Representatives; and all such waivers or modifications, together with the reasons therefor, shall be communicated to Congress in connection with estimates for any additional appropriations required on account thereof. Any person violating any provision of this section shall be summarily removed from office and may also be punished by a fine of not less than one hundred dollars or by imprisonment for not less than one month.""

Section 4, act of March 3, 1905, supra, amends section 3679, Revised Statutes, but it does not purport to amend or repeal section 3732, Revised Statutes.

I am of opinion that the power conferred upon the War and Navy Departments to make contracts for or purchases of clothing, subsistence, forage, fuel, quarters, or transportation, which shall not exceed the necessities of the current year, by said section 3732, remains unaffected and in all respects as it existed prior to the passage of said act approved March 3, 1905, amending said section 3679.

MOUNTED PAY TO OFFICERS OF THE ARMY.

An officer of the Army whose first assignment upon graduation from the Military Academy was to a fully organized and equipped battery of the field artillery, the assignment being made to take effect from date of his graduation, is a mounted officer, within the meaning of the law and regulations, from the date of his graduation, and he is entitled to the pay of a mounted officer from such date.

(Assistant Comptroller Mitchell to the Secretary of War, March 29, 1905.)

I have received your communication of the 14th instant requesting my decision of a questiou presented by the Paymaster-General of the Army, as follows:

"In view of the statement in the thirteenth indorsement, regarding favorable action by the Auditor for the War Department in a claim for mounted pay similar to this, decision is requested whether an officer of the Artillery Corps, whose first assignment upon graduation from the Military Academy is to the field artillery, is entitled to mounted pay from date of graduation to date of reporting in person for duty with the organization to which assigned."

The Paymaster-General's request is based upon the demand of Second Lieut. Lesley J. McNair, Artillery Corps, U. S. Army, for mounted pay from the date of his graduation from the Military Academy which, it appears, was on June 15, 1904.

By General Orders, No. 121, War Department, dated July 11, 1904, the officer was assigned to the Twelfth Battery Field Artillery, to date from June 15, 1904, the date of his graduation. This was his first assignment to duty as an officer of the Army. He was granted on graduation the usual leave of absence, which terminated September 15, 1904. He applied for, but was refused, mounted pay prior to the date he actually joined the field artillery for duty.

The act of December 20, 1886 (24 Stat., 351), provides:

"That every cadet who has heretofore graduated or may hereafter graduate at the West Point Military Academy, and who has been or may hereafter be commissioned a second lieutenant in the Army of the United States, under the laws appointing such graduates to the Army shall be allowed full pay as second lieutenant from the date of his graduation to the date of his acceptance of and qualification under his commission and during his graduation leave, in accordance with the uniform practice which has prevailed since the establishment of the Military Academy."

Section 5, of the act of February 2, 1901 (31 Stat., 749), provides:

"That all officers of artillery shall be placed on one list, in respect to promotion, according to seniority in their several grades, and shall be assigned to coast or to field artillery according to their special aptitude for the respective services.” Section 1261 of the Revised Statutes, fixes the pay of a second lieutenant, mounted, at $1,500 a year.

Section 1270 of the Revised Statutes, provides:

66* * * That officers of the Army and of Volunteers assigned to duty which requires them to be mounted, shall, during the time they are employed on such duty receive the pay, emoluments, and allowances of cavalry officers of the same grade respectively."

Paragraph 1450, Army Regulations of 1901, in force during the period in question, provides:

* * *

"The following officers, in addition to those whose pay is fixed by law, are entitled to pay as mounted officers: officers of a field or siege battery duly organized and equipped." *

*

*

The officers of field and siege batteries do not derive their right to mounted pay from the words "are entitled to pay as mounted officers" in the above regulation, but said regulation, properly construed, is a determination by the War Department that said officers are on duty which requires them to be mounted, and because of that are entitled to mounted pay under section 1270, Revised Statutes. I am verbally informed at the War Department that the battery to which officer was assigned was, during the period in question, duly organized and equipped. This being so, the organization was required to be mounted, and under the law and regulations the officers were entitled to mounted pay.

In United States v. Crosley, decided January 28, 1905, the Supreme Court, in construing paragraphs 1301 (same as 1450 of 1901), 1302, and 1303 of the Army Regulations, 1895, and section 1270, Revised Statutes, supra, said:

"We think these sections (paragraphs 1302 and 1303, supra), with section 1301 of the Army Regulations above quoted, read in the light of the statute (Rev. Stat., sec. 1270) giving to army officers the pay of cavalry officers of the same grade when assigned to duty which requires them to be mounted, indicates a general purpose to give to officers of the Army mounted pay when their duties are such as may require them

to be actually mounted, or are such as may at any time subject them to the necessity of rendering mounted service. The particular section (1301).under which it is insisted that a naval aid is entitled to mounted pay designates officers who either are or may be required to be mounted in the discharge of their duties, and likewise to officers on duty which, in the opinion of the department commander, requires them to be mounted and so certified by the latter on their pay vouchers.' "This paragraph was intended to include the particular classes of officers who are entitled to pay as mounted officers under the classification in the first part thereof, and gives the benefit of the higher rate of compensation to other officers, not expressly named therein, whose duties require them to be mounted. It may be true, as argued at the bar, that there may be times when the duties of an aid to a major-general will not require him to be mounted. But, as we understand the Army Regulations, such officers may be at any time required to render mounted service and are therefore given the pay of that class."

In Harrold v. United States (23 Ct. Cl., 295) the Court of Claims held that a mounted officer is one who, by statute, regulation, or army organization, is required to be mounted at his own expense, and said:

"In our opinion, when an officer belongs to a battery which is designated by the President as a 'light battery,' in which the officers are required to be mounted, and actually serves with such battery, or is assigned to duty which requires him to be mounted, he is entitled to mounted pay during the time he is so employed on such duty, from the day of such designation or assignment, whether or not the battery be fully equipped or he be actually mounted till a later day."

(See also Crosley v. United States, 38 Ct. Cl., 82; Richardson v. United States, id., 182, 194; MS. Dec., vol. 28, p. 198; 29 id., 164.)

In view of the authorities cited, I am of opinion that an officer of the Artillery Corps whose first assignment upon graduation from the Military Academy is to a fully organized and equipped battery of the Field Artillery, the assignment being made to take effect from the date of his graduation, becomes a mounted officer within the meaning of the law and regulations from the date of his graduation, and is entitled to the pay of a mounted officer from such date.

The decision in 8 Comp. Dec., 744, has not been overlooked, but it is believed that a case such as here presented does not fall fairly within the scope of that decision.