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By letter dated May 2, 1905, the Auditor called the Commissioner's attention to the discrepancy in the quantity and kind of lumber as variously shown in the voucher and in said deficiency act. In reply, under date of May 26, 1905, the Acting Commissioner said in part:
"The discrepancy between the kind of material specified in the deficiency act and that itemized in the claim arose, as it now appears, through an error in this office in making up the estimate on which the item in the act was based, the superintendent of the Southern Utah School stating in a letter just received in this office that no flooring was purchased."
Whereupon the Auditor allowed the claim and certified the amount thereof, $343.84, to be due to the claimant, but withheld the certificate, and with letter of transmittal dated May 29, 1905, referred all the papers in the case to this office for approval, disapproval, or modification of his decision on the construction of said provision in the deficiency act.
The published report of the Commissioner of Indian Affairs for 1904 (p. 345) shows that the Indians for whom the lumber was furnished are variously termed "Shebits," as in the act, and "Shivwits," as in the voucher.
By the act Congress appropriated a fixed amount for the payment of claimant for lumber delivered by him in July, 1904. I do not think a misdescription in the act of the materials or services already furnished, for the payment for which an ascertained amount has been appropriated, warrants the withholding of payment.
In the deficiency act of March 2, 1895, the following item appears (28 Stat., 847):
"For court-house and post-office at Pittsburg, Pennsylvania: For balance due Nelson T. Reed and Company for advertising, one hundred and thirty dollars and ninety cents."
It subsequently appeared that Reed & Co's claim for said amount was for advertising the sale of custom-house property in Pittsburg, and that the language used in the appropriation was the result of inadvertence in the report to Congress for a deficiency appropriation, as in the present case. In that case the Comptroller held in 1 Comp. Dec., 316, as follows:
"The words, 'For court-house and post-office at Pittsburg, Pennsylvania,' may, in my opinion, be treated as surplusage. If the appropriation had been for future advertising, and not.
a deficiency appropriation for an amount actually found due, the words, For court-house and post-office at Pittsburg, Pennsylvania,' would have been controlling, and this opinion therefore would have been otherwise."
So in the present case, if the appropriation had been for the future purchase of 43,000 feet of flooring and 5,000 feet of lumber, the kind and quantity of materials named in the act would be controlling, notwithstanding the manifest inadequacy of the amount appropriated for such kind and amount of lumber.
The decision of the Auditor is approved.
HOLDING TWO APPOINTMENTS AT ONE TIME.
The employment by the Secretary of the Interior of a retired officer of the Army whose compensation is in excess of $2,500 per annum for special services in connection with the disbursement of funds to the Omaha Indians is authorized, provided the compensation of the position to which it is proposed to appoint him is fixed by regulation of the Department prior to the date of his appointment thereto. (Comptroller Tracewell to the Secretary of the Interior, June 2, 1905.)
I am in receipt of your letter of the 27th ultimo as follows: "On account of his knowledge of existing conditions with respect to the affairs of the Omaha Indians, having been their agent for a number of years, within a comparatively recent period, and therefore because of his special fitness to carry out certain policies of the Department, it has been deemed desirable to engage the services of Brig. Gen. William H. Beck, U. S. Army, retired, for a limited period (three months) to supervise and assist in a payment soon to be made to said Indians, under the provisions of the act of April 21, 1904 (33 Stat., 201), from the principal of their funds now on deposit in the Treasury.
"It is proposed to pay General Beck a monthly salary, actual necessary traveling and incidental expenses, and a per diem in lieu of subsistence, from the appropriation 'Contingencies Indian Department.' The question is as to his eligibility, in view of a clause in the act of July 31, 1894 (28 Stat., 205), which prohibits the appointment to another office of a person who holds an office the salary or compensation attached to which amounts to $2,500, unless specially authorized by law, etc.
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"General Beck's salary as a retired army officer exceeds the sum named, and he is therefore 'a person who holds an office' within the meaning of that statute. The question is, whether a special supervision of the work indicated would be another office to which compensation is attached' (by law) within the meaning of the aforesaid law.
"Congress seems to have meant an office to which compensation is attached by law, and, if it be admitted that special or temporary supervision of the kind indicated be performing the duties of an office, there would be no compensation attached by law, as the same would be payable from a fund not specially provided therefor."
The act of April 21, 1904 (33 Stat., 201) provides:
"That the Secretary of the Interior is hereby authorized and directed, under such rules and regulations as he may prescribe, to pay per capita to the following Indian tribes, all funds now to their credit in the United States Treasury or such part of such funds as he may deem necessary for their best interest braska;
Section 1 of the act of April 21, 1904, supra, p. 191, provides:
"For contingencies Indian Service employees not otherwise provided for and dollars
* * *
for pay of
* sixty thous
The Secretary of the Interior is authorized under the last provision quoted to employ a person for the purposes specified in his letter and pay him from said appropriation as an employee not otherwise appropriated for.
The only question remaining is, can a retired Army officer whose retired pay equals or exceeds $2,500 be so employed and paid.
An officer on the retired list of the Army holds an office with compensation attached within the meaning of the act of July 31, 1894 (28 Stat., 205), and when such compensation equals or exceeds $2,500 he can not hold any other office with compensation attached. (11 Comp. Dec., 422.)
The employment which it is proposed to give BrigadierGeneral Beck, however, is not an office with compensation attached, and his employment is not prohibited by anything contained in the act of July 31, 1894, supra (1 Comp. Dec., 286; 2 id., 271; id., 467; MS. Dec., vol. 7, p. 988). The compensation of the position to which you propose to employ
General Beck, retired, not being fixed by law, if you will, by regulation, fix the same before his employment, you will bring the case within the rule announced in United States v. Saunders, 120 U. S., 126 (see 10 Comp. Dec., 726; id., 767), and in fixing said compensation you are authorized to provide for a per diem in lieu of subsistence as a part of said compensation. (4 Comp. Dec., 424.)
PAY WHILE ON LEAVE OF ABSENCE.
The estate of a deceased employee who had taken sick and died while on leave of absence without pay is not entitled to pay for sick leave which had neither been granted the deceased nor requested by him. (Comptroller Tracewell to the Secretary of War, June 3, 1905.)
As per reference of the Chief of Engineers of the Army, by your authority, dated May 26, 1905, of a communication from Col. Charles S. Bromwell, dated May 22, 1905, you request my decision of a question which is therein presented, as follows:
"The late John Stewart, a valued employee of over thirtyone years' service in this office, who died on December 6 last, was granted by the officer in charge twenty-four days' annual leave in July, 1904, and with the approval of the Chief of Engineers was also granted leave, without pay, for the months of August, September, and October, 1904, for the purpose of going abroad. During 1904 he had also been granted an extension of annual leave of twenty-one days by reason of sickness, making his total absence, with pay, during the year forty-five days.
"He was to have resumed his duties here on November 1, but was taken sick in September during his absence, gradually grew worse, and died on December 6, 1904, without having reported at this office since his last day of duty on July 1.
"Under these circumstances, the question arises is Mr. Stewart's estate entitled to receive the amount of salary which would have been paid him for the fifteen days necessary to make up the full sixty days' annual leave with pay due him under the law had he resumed his duties on November 1?"
It is not seen upon what hypothesis or reasoning the Government is indebted to the estate of Mr. Stewart in any sum on account of salary due him at the date of his death. He had been granted all the annual leave he requested, so far as
indicated by your communication; also all the sick leave that he requested. You do not state what period of time was covered by the twenty-one days of sick leave. He was carried on the rolls without pay during the months of August, September, and October, 1904, as per leave granted. He died on December 6, 1904, not having reported back to the office.
You are not authorized to pay him for fifteen days' leave which was not granted.
USE OF SPECIFIC APPROPRIATION.
The appropriation made in the act of June 6, 1900, for the installation of an electric plant in the new custom-house at Baltimore, Md., is not applicable to the enlargement of an existing plant now in use in the post-office building in said city, notwithstanding it is proposed to use said plant when so enlarged for lighting both of said buildings.
(Comptroller Tracewell to the Secretary of the Treasury, June 3, 1905.)
In your communication of May 31, 1905, you request my decision of a question which you therein present as follows:
"I have the honor to transmit herewith a communication addressed to the Supervising Architect by the honorable the Acting Secretary of the Treasury relative to providing an electrical generating plant for the new custom-house building in course of construction at Baltimore, Md.
"The appropriation for the custom-house is available for installing an electrical generating plant for said building, but a large annual saving can be effected if the necessary machinery for generating current for the custom-house can be placed in the post-office building in said city and be operated in connection with the plant in that building by the engineer's force now employed therein; in other words, to light both buildings from one plant.
"It is of importance that this matter be determined. promptly, and I have the honor, therefore, to request to be advised, at your early convenience, whether or not the appropriation for the new custom-house building at Baltimore may be used for the purpose above suggested."
It is understood that it is in contemplation by you to install in the post-office building in the city of Baltimore, which building has been completed and occupied, an addition to the