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lough to an absolute discharge. Under these circumstances, having rendered no service, he can not claim compensation.
Although a clerk in an executive Department might be held to be an officer, within the meaning of that term as used in a particular statute (United States v. Ilartwell, 6 Wall., 385), in the above case the Supreme Court appears to treat the clerk considered therein as an "employee” merely. I think there is no doubt that the special agent in the case under consideration herein, who is employed under the general provisions of the appropriation for protecting public lands, timber, etc., is merely an employee.
There does not appear to be any material distinction between placing an employee on leave of absence without pay, without his request, and suspending him from duty.
The recommendation that the special agent be suspended was approved by the Secretary of the Interior, who had power to dismiss him, and I am therefore of opinion that he is not entitled to compensation during the period of his suspension.
The decision of the Auditor is disapproved.
FEES OF GOVERNMENT EMPLOYEES FOR ATTENDANCE AS WITNESSES IN EXTRADITION PROCEEDINGS.
An .employee of the Government is not entitled to mileage and fees but
only to actual and necessary expenses for attendance as a witness before a United States commissioner in extradition proceedings instituted, under section 5270, Revised Statutes, in the name of the United States.
(Comptroller Tracewell to W. R. Compton, marshal, May 4,
1905.) I have received your letter of the 24th ultimo, which reads as follows:
“I have the honor to submit herewith pay roll in the case of the United States v. Lambert et al., with the following statement:
“The defendants were arrested as fugitives from justice under the extradition treaty with Great Britain and were taken before Commissioner George P. Keating at Buffalo, who is the duly designated commissioner to hear such cases. “The witnesses are salaried employees of the United States and, instead of actual expenses, claim mileage and per diem on the ground that the British Government is really the plaintiff, and that they are witnesses in behalf of the British Government and not in behalf of the United States, and, further, as the amount of the claims for witness fees is eventually paid by the British Government, that the rule relating to the par. ment of salaried employees of the United States does not apply in this case.
The question is:
“Am I authorized to pay the witnesses the amount due each as set forth in this pay roll or have accounts rendered by the witnesses under section 850, Revised Statutes?"
The extradition proceedings out of which grows the question as to whether the witnesses are to be paid for attendance thereon before the commissioner under section 850 of the Revised Statutes, or are to be paid regular per diem fees and mileage, were instituted under section 5270 of the Revised Statutes in the name of the United States. The obstruction of this statute is made a felony by section 5277 of the Revised Statutes. The mere fact that a foreign government reimburses the Treasury of the United States for the fees and costs paid by it from its appropriations to support the judiciary in such cases, under the provisions of the act of June 30, 1903, does not make them any the less cases of the Government. The United States, operating under section 850, pays the salaries of its employees while called upon as witnesses in these cases, and therefore it is just and equitable that a foreign Government should ultimately pay the costs of witnesses in proceedings under section 5270 of the Revised Statutes. These witnesses were subpoenaed by and for the Government of the United States. Statutes of extradition are statutes providing for a governmental duty in pursuance of treaty obligations. Their enforcement is strictly governmental proceedings, the same as other statutes enforcing the penalties of the criminal laws.
If the extradition proceedings in question were not a gor. ernmental proceeding and if the Federal salaried employees mentioned in your letter were not sent away from the places where they performed their duties as such Federal employees by virtue of the subpena as witnesses for the Government, they would not be entitled to draw their salaries as such Federal employees during such absence. But in my judgment they were absent from their places of business as witnesses for the Government and are entitled to their regular salaries As such and to their necessary expenses in going, returning, and attendance before the commissioner, which expense account should be stated in items and sworn to, and this expense account you are authorized to pay, and not the regular mileage and fees.
If the commissioner should tax and order the costs to be paid as set out in your voucher, you would be protected in such payment by the provisions of section 846 of the Revised Statutes, if you see fit to make it.
EXPENSE OF CARING FOR INSANE PERSONS IN
THE TERRITORY OF ALASKA.
The appropriation made in the act of April 28, 1904, for the care and cus
tody of insane persons in Alaska is exclusively applicable to expenses incurred for that purpose prior to March 3, 1905, and expenses incurred after that date are properly payable from the appropriation known as the “Alaska fund,” or the specific appropriation made in the act of March 3, 1905, for the care and custody of the insane in Alaska.
(Decision by Assistant Comptroller Mitchell, May 4, 1905.)
The Auditor for the Interior Department submits for approval, disapproval, or modification the following decision:
“By the acts of June 6, 1900 (31 Stat., 322), and of April 28, 1904 (33 Stat., 526), indefinite appropriations were made 'out of any money in the Treasury not otherwise appropriated' for the care and custody of the insane of Alaska.
“ By the act (Public, No. 26) of January 27, 1905, it was provided:
• That all moneys derived from and collected for liquor licenses, occupation, or trade licenses outside of the incorporated towns in the district of Alaska shall be deposited in the Treasury Department of the United States, there to remain as a separate and distinct fund, to be known as the "Alaska fund,'' and to be wholly devoted to the purposes hereinafter stated in the district of Alaska. One-fourth of said fund, or so much thereof as may be necessary, shall be devoted to the establishment and maintenance of public schools in said district; five per centum of said fund shall be devoted to the care and maintenance of insane persons in said district, or so much of said five per centum as may be needed, and all the residue of said fund shall be devoted to the construction and maintenance of wagon roads, bridges, and trails in said district.'
“No moneys have yet been deposited in the Treasury to the credit of said Alaska fund.
“By the act of March 3, 1905 (33 Stat., 1189), the sum of $17,232 was appropriated ‘for the care and custody of persons legally adjudged insane in the district of Alaskă, including transportation and other expenses, up to and including June 30, 1906, to be immediately available.'
“I hold that expenses incurred under the contract with the Sanitarium Company, of Portland, Oreg., for the care of the insane of Alaska from January 16 to and including March 2, 1905, are payable from the indefinite appropriation made by the act of April 28, 1904, and that the claim of said Sanitarium Company for the care of said insane persons from and including March 3, 1905, is payable from the specific appropriation of $17,232 made by the act of that date. The contract with, and the claim of said Sanitarium Company for $1,243.30, for the maintenance and care of the insane of Alaska for the period from January 16 to April 15, 1905, are herewith submitted for your consideration."
It appears from the papers submitted that the contract for the care and custody of the insane of Alaska was made January 17, 1905; and that the account covers a period from January 16, 1905, to April 15, 1905.
The act of July 1, 1902 (32 Stat., 560), provides that:
“Hereafter no act of Congress shall be construed to make an appropriation out of the Treasury of the United States, unless such act shall, in specific terms, declare an appropriation to be made for the purpose or purposes specified in the act." The act of April 28, 1904 (33 Stat., 526), provides:
* That the Secretary of the Interior shall, in the month of November, nineteen hundred and four, and from time to time thereafter, as in bis judgment may be deemed advisable, advertise for and receive bids for the care and custody of persons legally adjudged insane in the district of Alaska, and thereafter, in behalf of the United States, shall contract, for one or more years, as he may deem best
for the care and custody of persons legally adjudged insane in said district of Alaska, the cost of advertising for bids, executing the contract, and caring for the insane to be paid, until otherwise provided by law,
out of any money in the Treasury not otherwise appropriated
The act of January 27, 1905 (33 Stat., 616), provides in section 1 as is quoted in the Auditor's decision. Section 8 of said act further provides:
“That commissioners appointed by the judges of the district court in the district of Alaska, pursuant to existing laws, shall, as ex officio probate judges and in the exercise of their probate jurisdiction, have power, and it shall be their duty, in their respective districts, to commit, by warrant under their hands and seals, all persons adjudged insane in their districts to the asylum or sanitarium provided for the care and keeping of the insane of the district of Alaska
The act of March 3, 1905 (33 Stat., 1170), provides:
“Alaska fund: That moneys described as the 'Alaska fund' in section one of 'An act to provide for the construction and maintenance of roads, the establishment and maintenance of schools, and the care and support of insane persons in the district of Alaska, and for other purposes,' approved January twenty-seventh, nineteen hundred and five, be, and the same are hereby, appropriated out of the Treasury of the United States for the uses and purposes in said act mentioned.”
The last cited act further provides (p. 1189):
“For the care and custody of persons legally adjudged insane in the district of Alaska, including transportation and other expenses, up to and including June thirtieth, nineteen hundred and six, to be immediately available, seventeen thousand two hundred and thirty-two dollars.
The expenses for care and custody of the insane of Alaska incurred under the contract of January 17, 1905, are payable from the appropriation made by the act of April 28, 1904, supra,“ until otherwise provided by law.” It was not otherwise provided by law until the “Alaska fund” provided by the act of January 27, 1905, supra, or the special appropriation "for the care and custody" of the insane of Alaska made by the act of March 3, 1905, supra, became available.
The act of January 27, 1905, supra, did not in “specific terms declare an appropriation to be made for the purpose or purposes specified in the act " and under the provisions of the act of July 1, 1902, supra, it should not be construed to make an appropriation out of the Treasury, especially as the act of March 3, 1905, does, in specific terms, appropriate the moneys described as the “ Alaska fund” in the act of January 27, 1905, for the uses and purposes specified in said act.
I am of the opinion that the act of January 27, 1905, read in connection with the acts of March 3, 1905, and of July 1,