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absence without deduction of pay or allowances provided that the same be taken once in two years, etc.' Where any such officer, to whom leave of absence without deduction of pay or allowances has been granted, is at the time he takes his leave entitled to an allowance of commutation for quarters, this allowance must be deemed to be continued to him, by force of that provision, whilst he is on leave of absence, though for a period not exceeding that for which the leave was granted thereunder."

The provision in the act is against a deduction of pay as well as of allowances, and the pay which the officer is receiring when he goes on leave must also “be deemed to be continued to him by force of the provision” while he is on his statutory leave.

I am therefore of opinion that an officer of the line of the Navy or of the Medical or Pay Corps, whose pay is assimilated to army pay, is, when on leave of absence from sea duty, and not detached from that duty, entitled to receive sea pay during the cumulative leave provided by section 1265 and the act of July 29, 1876 (19 Stat., 102).

The Auditor's settlement, No. 5452, of February 20, 1905, appealed from, is disaffirmed and, in order to conform to the conclusions herein arrived at, the settlement is revised as follows:

CREDITS.

April 10 to 11 and May 4 to 5, 1900, 4 days, at $1,700 per annum,

the sea pay of an acting assistant surgeon in first 5 years... $18.89 June 25 to 30, 1900, 6 days, at $1,760 per annum, the sea pay of an assistant surgeon (lieutenant J. G.) after 5 years...

29.33 August 25 to 27, 1900, and April 29 to May 5, 1901, 10 days, at $1,760, same pay as above...

48. 89 April 25 to May 1, 1902, 7 days, at $1,760, same pay as above..... 34. 22 September 26 to October 1, 1903, 6 days, at $2,400 per annum, the sea pay oi a passed assistant surgeon (lieutenant) after 10 years. 40.00 Total

171.33

DEBITS.

To pay allowed by Auditor, as follows:
April 10 to 11 and May 4 to 5, 1900, 4 days, at $1,000, the

leave or waiting-orders pay of an acting assistant surgeon. $11. 11 June 25 to 30, 1900, 6 days, at $1,496, the shore pay of an assistant surgeon (J. G.) after 5 years.

24.93

August 25 to 27, 1900, and April 29 to May 5, 1901, 10 days, at $1,496, same pay as above..

$41.56 April 25 to May 1, 1902, 7 days, at $1,496, same pay as above. 29.09 September 26 to ber 1, 1903, 6 days, at $2,040, the shore pay of a passed assistant surgeon after 10 years..

34.00

-$140. 69

Balance due claimant.....

30. 64 A difference is therefore found in favor of the appellant of thirty dollars and sixty-four cents. Revision is made only as to the periods mentioned, and is reserved as to the remainder of the settlement.

PURCHASE OF INDIAN LANDS AT THE PORT

MADISON INDIAN RESERVATION.

The act of March 3, 1905, ratifying and confirming an agreement for the

purchase of certain Indian lands at the Port Madison (Wash.) Indian Reservation does not make an appropriation in terms for the purchase of said lands.

(Assistant Comptroller Mitchell to the Secretary of War, April

1, 1905.) In a communication from the Chief of Engineers, by your authority, dated March 30, 1905, my decision is requested upon the questions therein presented, as follows:

“1. Under date of December 9, 1903, the Assistant Secretary of War authorized the acquisition, for fortification purposes under the charge of this office, of a portion of the Port Madison Indian Reservation, on Agate Passage to Port Orchard, State of Washington. The lands sought to be so acquired by the War Department are described as lots 4 and 5 of section 21 and lots 1 and 2 of section 28, township 26 north, range 2 east, Willamette meridian. Lots 4 and 5 of section 21 are unallotted tribal lands, and lots 1 and 2 of section 28 are held, respectively, by Claf-wha George and Qu-dis-kid Big John, Indian allottees, under trust patents. The lands and improvements were appraised, under the direction of the Secretary of the Interior, at a valuation of $11,458.75 (including an assessment of $200 for cable anchorages of two telegraph companies, which the Commissioner of Indian Affairs has stated should be deducted from the amount of the appraisement); the appraisement was accepted and agreed to by the War Department, and the necessary agreements with the Indians were secured to the sale of the tribal lands and private holdings.

“2. In section 6 of the Indian appropriation act approved March 3, 1905 (copy inclosed), Congress has ratified and confirmed the agreement with the Indians for the sale of the property, which includes the $200 assessed for cable anchorages herein before mentioned. In this agreement it is stipulated that the money shall be paid by the United States within ninety days after the ratification thereof. It provides that the sum of $3,900 shall be paid in cash to the said Indians per capita, share and share alike, to each man, woman, and child belonging on the said Port Madison Indian Reservation; also to certain of said Indians the sum of $3,628 for certain personal improvements, and $166.75 to the treasurer of the Port Madison Indian Improvement Club for a floating wharf, and $355 to the treasurer of the board of trustees of the Port Madison Indian Church, and further that the disposition of the sum of $884, the appraisement of the Government schoolhouse and farmer's dwelling, and $200 for cable anchorages of two telegraph companies is discretionary with the Secretary of the Interior, and may be expended, in his discretion, in the erection of a day school building,' etc.

"3. It being the understanding of this Department that the lands and improvements were to be paid for from the proper appropriation under the control of the War Department, the necessary funds for the several payments involved were allotted, by authority of the Assistant Secretary of War, from the appropriation for .Sites for fortifications and seacoast defenses.''From a letter addressed to the Secretary of War by the Secretary of the Interior under date of March 25, 1905, and a copy of a communication from the Commissioner of Indian Affairs inclosed therewith (copy of each inclosed), it appears that a similar understanding exists in the Department of the Interior.

" 4. It further appears from the communication from the Commissioner of Indian Affairs, however, that the Treasury Department has construed the provision of the act of March 3, 1905, herein before cited, to carry with it an appropriation of the sum of the several amounts specified therein and has issued to the Department of the Interior a warrant for that sum, viz, $9,433.75. This does not cover the amounts agreed upon to be paid to the two Indian allottees, Claf-wba George and Qu-dis-kid Big John, who hold their lands under trust patents. These amount to $2,025.

“5. The Secretary of the Interior, in pursuance of the recommendation of the Commissioner of Indian Affairs, now requests, in his letter of March 25, of which a copy is inclosed, that the entire amount of the appraisement (less $200 for cable

anchorages, but including the sums to be paid to the two Indian allottees) be placed upon the books of the Treasury Department, either by transfer or by deposit of funds of the War Department, to the credit of the Indians of the Port Madison Indian Reservation, to be disbursed under the direction of the Department of the Interior, in paying for the lands and improvements.

“6. It was assumed that, under the provisions of section 355, Revised Statutes, the opinion of the Attorney-General upon title would be required in the case of these Indian lands, as in the acquisition of any other lands, and the assistance of the Department of Justice was asked in the preparation of papers necessary to effect a transfer of the property to the United States, with a view to obtaining the opinion of the Attorney-General as to the validity of the title which would be thereby vested in the United States. The United States district attorney, in cooperation with the local engineer officer, is now engaged in the preparation of the papers and in having them executed by the Indians. The State of Washington has given general consent to the acquisition by the United States of lands required for public purposes. (Code of 1891, secs. 2947–2949.)

67. In view of the foregoing, I have the honor to request the decision of the Comptroller upon the following questions:

" *(a) If it be held by the Treasury Department that the provision in section 6 of the Indian appropriation act of March 3, 1905, carries an appropriation for the payment for the tribal lands and improvements thereon, is that appropriation such a specific appropriation as to be solely applicable to such payments, to the exclusion of a general appropriation which would be otherwise applicable to the purpose? It is presumed that payment for the holdings of the two Indian allottees, for the lands for which they hold trust patents, may be made from the general appropriation for the procurement of sites for fortifications (carried by the fortification appropriation acts of April 21, 1904, and earlier dates), the same not having been provided for by specific appropriation, and the lands not being in the same category with the tribal lands. The Congressional measure simply authorized these allottees to sell their hold. ings to the United States.

**(6) Whether funds from the appropriation for the procurement of sites for fortifications, under the control of the Secretary of War, can be properly transferred to the Secretary of the Interior for disbursement or distribution under the latter's control and direction; and if so, whether such transfer should be made by the War Department in advance of the receipt of an opinion of the Attorney-General approving the title to be conveyed.””

Section 6 of the act of March 3, 1905 (Public-No. 212), making appropriations for current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes for the fiscal year 1906, contains a provision ratifying an agreement by an Indian inspector May 28, 1904, with adult male Indians residing on the Port Madison Indian Reservation, conveying to the United States certain lots of land in consideration of certain payments therein specified to be made by the United States. This provision was interpreted by the Treasury Department as making an appropriation to pay the sums which the agreement specified were to be paid by the United States.

It now appears from the communication of the Chief of Engineers that the said agreement made by the Indian inspector with the Indians was made at the instance of the War Department for use by that Department for fortification purposes, to be paid for from the appropriation for "Sites for fortifications and seacoast defenses."

Section 6 of the act of March 3, 1905, supra, contains no language which in terms makes an appropriation. It is true the act provides:

“That the following sums be, and they are hereby, appropriated,” etc.

This provision is followed by items specifying certain sums for specified purposes. But I do not think the recital of the agreement in the statute, which agreement specifies the sums to be paid, constitutes an item of appropriation.

I am therefore of opinion that the amount required to pay for the lands purchased should be paid from the appropriation for “Sites for fortifications and seacoast defenses,” which provides for the procurement of land for sites, etc., for fortifications and coast defenses.

From the papers submitted it appears that the persons entitled to payment are Indians and practically wards of the Interior Department, and as that Department will necessarily be called on to furnish a list of and identify the payees,

it is thought best to have the necessary funds placed under the control of the Secretary of the Interior in order that payments may be made by some disbursing officer of the Interior Department, preferably the Indian agent at or near the reser

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