The total earnings from July 9 to December 31, 1903

and from January 1 to June 30, 1904 (Banes agency)—

Fees....
Services..

$1,058.00 50.73

1, 108. 73

The consul in rendering his accounts for these fees treated the two holdings as one continuous holding or office and allowed the agent, Mr. Bayliss, to retain one-half of the amounts collected; that is to say, $331.25 of the collections at the Gibara agency and $529 of the collections at the Banes agency, and claimed credit therefor.

The Auditor in settling the accounts held the two holdings to be separate and distinct offices and allowed the consul credit for the $331.25 retained by the agent out of the Gibara agency fees and $500 of the $529 retained by the agent out of the Banes agency fees. He also allowed the agent $6.50, half of the fees for services to American vessels and seamen at Gibara, but allowed him nothing for such services at Banes, because he had already received from fees collected the full compensation, $500, to which he was entitled for the half year he was agent at that agency. These credits and allowance aggregate $837.75.

The Auditor also credited the consul as his personal compensation with one-half of all the fees collected at both agencies, aggregating $860.25, and allowed him one-half for services, supra, namely, $6.49 for the Gibara agency and $25.37 for the Banes agency, aggregating $892.11.

The sum of these credits and allowances is $1,729.86, leaving a balance of $54.36, the difference between the total fees and services ($1,784.22) claimed by consul in his accounts and the aggregate of credit and allowances by the Auditor. This difference relates entirely to fees collected and services rendered at the Banes agency and is composed of the $29 retained by the agent in excess of $500 and $25.36, one-half of the compensation, which would have belonged to the agent if

he had not already received his maximum, and this difference constitutes the sole basis of claimant's appeal, which he bases upon two grounds:

First. That indicated in the rendition of his accounts, namely, that the incumbency of Mr. Bayliss at the Banes agency was a continuation of his incumbency at the Gibara agency; that it was not a new office, but a continuation of the discontinued agency and office, and that the agent, not having earned and received his maximum for the entire incumbency, is entitled to one-half of the aggregate fees collected and compensation for services rendered during the whole year; and

Second. That even if the Banes agency was a new and separate agency and Mr. Bayliss's appointment thereto an appointment to a new and independent office, he (the consul) is entitled to credit for the entire surplus or residue remaining after the allowance to Mr. Bayliss of $500, his maximum for the six months ending June 30, 1904; in other words, that his (the consul's) allowance is not subject to the limitations, as to time or period, which apply to consular agents.

Claimant's first contention is untenable. The facts show that the Banes agency was a new and independent creation or establishment, and the appointment of Mr. Bayliss to that agency was as much an appointment to a different office as if it had been his first appointment, and he is entitled to no more than the maximum compensation ($500) allowed and credited by the Auditor for his services at the Banes agency, and the $29 retained by him was without authority of law; therefore the Auditor's action upon this phase of the question is affirmed.

The second phase of the question is more difficult. It has long been the practice to allow the consul to retain out of the residue or balances remitted to them by consular agents in their consular districts up to $1,000 per year, or a pro rata thereof, for such period as the consul may have held office, and this allowance has been made without regard to the period of the agent's incumbency, and they have never held that the consul was limited to the amount which might be retained or allowed to the consular agent. This rule is clearly indicated by the fact that in the settlement of the account under consideration the Auditor credited claimant with $529, fees collected, and $25.37 on account of services at the Banes

agency, aggregating $554.37, while he allowed the agent but $500, and under this rule the consul is clearly entitled to credit for the additional surplus or residue, $29, which should have been remitted to him by the agent, and to the allowance of the balance, $25.36, for services at the Banes agency, if there be no law or regulation obnoxious to such credit and allowance or either of them. That this rule, in so far as it relates to remittances by consular agents to the consul, has the concurrence of the State Department is clearly indicated by the terms of the circular of November 11, 1898, quoted supra, wherein it was declared that consuls may retain of fees remitted to them by agents not exceeding $1,000, and if such remittances are insufficient for the purposes indicated the consul may be paid one-half of the fees for services at such

agency.

I confess that I am unable to see any good reason for this distinction, but this circular or regulation has the force of law, and I do not feel warranted in going beyond its terms or in placing any construction thereon other than that indicated by its plain words. Therefore I hold that this claimant is entitled to an additional credit of $29, being the amount the agent should have also transmitted to him, but is entitled to nothing further on account of services rendered at the agency; and the Auditor's action on this phase of the question is modified accordingly.

APPROPRIATION FOR EMPLOYEES FOR THE BANNOCK INDIANS.

Under the provisions of section 4 of the act of April 21, 1904, the appropriation for particular employees for the Bannock Indians may be used by the Commissioner of Indian Affairs, subject to the approval of the Secretary of the Interior, in payment of other employees for said Indians not specifically appropriated for, without the direction of the President and the consent of said tribe.

(Comptroller Tracewell to the Secretary of the Interior, April 28, 1905.)

I am in receipt of your communication of the 21st instant, in which you refer to my letter of the 17th instant in which tentative objections were made to certain payments made by

A. F. Caldwell, superintendent of Fort Hall School and acting Indian agent, wherein it was suggested that a possible diversion had been made of funds appropriated for particular employees for the Bannock Indians at Fort Hall Reservation and applied to the payment of employees for said Bannock Indians not specifically appropriated for, without the direction of the President and consent of the tribe.

The following appropriation is found in 33 Stat., 199, for employees for Bannock Indians:

"BANNOCKS: For pay of physician, teacher, carpenter, miller, engineer, farmer, and blacksmith, as per tenth article of treaty of July third, eighteen hundred and sixty-eight, five thousand dollars; in all, eleven thousand dollars."

It appears from the vouchers examined in the account of Mr. Caldwell that neither a miller nor an engineer was employed, but that a farmer and an apprentice were employed in lieu thereof and paid out of said appropriation; that the President had not directed such employment of a second farmer or apprentice, or the Bannocks consented thereto, in the usual

manner.

Under the above state of facts, whether the tentative objections made thereto-viz, for the want of direction by the President and the consent of the tribe to such changed use of the appropriation are well taken depends upon the construction which should be given to section 4 of the act of April 21, 1904 (33 Stat., 217), which reads:

"That when not required for the purpose for which appropriated, the funds herein provided for the pay of specified employees at any agency may be used by the Commissioner of Indian Affairs, subject to the approval of the Secretary of the Interior, for the pay of other employees at such agency, but no deficiency shall be thereby created; and, when necessary, specified employees may be detailed for other service when not required for the duty for which they were engaged; and that the several appropriations herein made for millers, blacksmiths, engineers, carpenters, physicians, and other persons, and for various articles provided for by treaty stipulation for the several Indian tribes, may be diverted to other uses for the benefit of said tribes, respectively, within the discretion of the President, and with the consent of said tribes, expressed in the usual manner; and that he cause report to be made to Congress, at its next session thereafter, of his action under this provision."

You say in your letter above referred to:

"Under this authority it is held that when funds appropriated for the payment of an engineer or other specified employees are diverted to pay other employees, the authority of the Commissioner of Indian Affairs, approved by the Department, is sufficient for that purpose under the first clause of section 4, but where the funds appropriated for treaty employees are diverted to other uses for the benefit of said tribes (other than for the pay of other employees at such agency'), for instance, in the purchase of beef, clothing, etc., or where the funds appropriated under treaty for clothing are used in the purchase of flour, the authority of the President and the consent of the tribe are required. The Department would be pleased to have an expression of your opinion on that point."

Upon careful consideration of the language of said section 4 as a whole, I am not prepared to say that your construction of it is not a reasonable one. The first clause of the section authorizes the Commissioner of Indian Affairs, subject to your approval, to use appropriations made for specific employees to pay other employees not specifically appropriated for, with the proviso that no deficiency be thereby created. The second clause provides that appropriations made for specified employees and other employees and for articles provided by treaty stipulation for the several tribes may be diverted to other uses for the benefit of the said tribes upon the direction of the President and with the consent of the tribe.

The diversion spoken of in the second clause can not mean a diversion authorized in the first clause. If it did, the two clauses of the act would be utterly antagonistic. Such a construction should not be given an act when it can be avoided. It can be avoided in this instance by giving effect to the language of the act considered as a whole and construing the word diverted in the second clause to mean, as applied to funds appropriated to pay such employees, diverted for purposes other than the pay of employees.

The tentative objections to these vouchers are not well taken and will be abandoned, and Superintendent Hall will be notified that the explanations made are sufficient to remove the objections to these vouchers on account of the want of the direction of the President and consent of the Bannocks to use the appropriation to employ and pay a second farmer and an apprentice.