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USE OF GENERAL APPROPRIATION WHERE SPECIFIC IS EXHAUSTED.
Under the act of June 7, 1897, which provided that where a specific appropriation under the control of the Interior Department is not sufficient for the completion of the object for which it was made, the Secretary of the Interior may, in his discretion, use any other appropriation, general in its terms, which would otherwise be available, for the accomplishment of the object for which the specific appropriation was made, the Secretary is authorized to use the general appropriation for surveys of public lands, for completing the survey of lands ceded to the United States by the Shoshone Indians, for which object an insufficient specific appropriation was made by the act of March 3, 1905.
(Comptroller Tracewell to the Secretary of the Treasury, June 28, 1905.)
By your reference, dated June 22, 1905, of a communication from the Commissioner of the General Land Office, dated June 19, 1905, transmitted to you by the Secretary of the Interior, you request my decision of a question which is presented therein as follows:
"Referring to my letter of June 13, 1905, a copy of which is inclosed, recommending the setting apart of $1,900 from the appropriation of $35,000 for the survey of ceded lands within the Shoshone Indian Reservation, Wyo., for the necessary office work in connection with said survey, I have the honor to call the attention of the Department to section 11 of the act approved June 7, 1897, which is as follows:
"That hereafter where funds appropriated in specific terms for a particular object are not sufficient for the object named any other appropriation, general in its terms, which otherwise would be available may, in the discretion of the Secretary of the Interior, be used to accomplish the object for which the specific appropriation was made.' (30 Stat., p. 93.)
"It would seem that the survey above mentioned is a 'particular object' and the general appropriation for surveys and resurveys of public lands being available, the surveys of the ceded lands being the same as the surveys of public lands, the transfer of funds from the regular appropriation might be made for the purposes intended.
"The estimated cost of the surveys ($35,000) has been found too low.
"Contracts for the field work of the surveys of the ceded lands have been let amounting to $33,000.
"The survey of the boundary line of the diminished reserve mentioned in the act has not yet been contracted for, as it is deemed unnecessary at present. The estimate for this boundary line is $1,600. The office work, estimated at $9,000, is about to commence, and my said letter recommended the sum of $1,900 to begin the same.
"The field examination work will require $3,000, and the advertising bills will amount to $100, making a total of $11,700 in excess of the amount appropriated.
"I have the honor therefore to submit in lieu of my said letter of June 13, 1905, the following: That authority be granted to set apart the sum of $11,700 from the reserve fund of the appropriation for surveys and resurveys of public lands, fiscal year 1906, the restoration of this amount to the said appropriation to be recommended to Congress at the ensuing session.
"I further recommend that of the $11,700 desired the sum of $9,000 be set apart for office work on said surveys and $2,700 be set apart for field examination of the said surveys."
Section 11 of the act of June 7, 1897 (30 Stat., 93), quoted in the above communication, is contained in an act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes for the fiscal year 1898. It might appear therefore that it was limited in its application to the appropriations or the class of appropriations therein made. But the practice by Congress of inserting general and permanent legislation in annual appropriation acts has become so extensive that the fact of the insertion therein of particular legislation can not be regarded, I think, as an indication of an intention to so limit its application. The use of the word "hereafter" in the above provision indicates an intention to extend its application to future appropriations, and there is no language in the provision that indicates an intention to restrict its application to appropriations for any particular class of objects. I am therefore of opinion that the provision is general permanent legislation, applicable to all appropriations within its terms that are under the control of the Secretary of the Interior.
By the agreement with the Indians residing on the Shoshone or Wind River Indian Reservation, which was ratified 28007 Vol. 11-05-51
by the act of March 3, 1905 (33 Stat., 1016), certain lands in said reservation were ceded to the United States. The lands so ceded became public lands, and in the absence of any more specific appropriation for surveying them I think the appropriation for surveys and resurveys of public lands made by the act of March 3, 1905 (33 Stat., 1184), would be applicable thereto during the fiscal year 1906. But section 3 of the former act (33 Stat., 1021), made an appropriation of $35,000 for the survey and field and office examination of the unsurveyed portion of the ceded lands. This appropriation, being more specific for this particular object than the appropriation for surveys and resurveys, in the absence of the provisions in section 11 of the act of June 7, 1897, supra, or other similar legislation, would, under, well-established rules of construction, be exclusively applicable thereto. But, under the provisions in said section 11, I am of opinion that the Secretary of the Interior is authorized to use so much of the appropriation for surveys and resurveys for completing the survey of the unsurveyed portion of said ceded lands after the specific appropriation therefor has become exhausted as may be necessary for that purpose, such amount to be reimbursed from the sales of said lands. But I do not think you are authorized to transfer for this purpose moneys from the former of these appropriations to the latter.
The amount of the appropriation made by Congress for this purpose was not fixed in the agreement with the Indians, and it is evident from a consideration of all the provisions of the act that only the net proceeds of the sales of lands, after deducting the expenses of surveying, etc., is to be paid to the Indians.
MEDICAL ATTENDANCE FURNISHED EMPLOYEES OF THE RECLAMATION SERVICE.
The Secretary of the Interior having by authority of section 10 of the act of June 17, 1902, authorized the furnishing of medical attendance and medicines to employees of the reclamation service engaged upon work in connection with the Salt River irrigation project in Arizona, payment for medical attendance furnished such employees by a physician other than the one regularly employed for that purpose is authorized if it was at the time impracticable to secure the services of the regular physician.
(Comptroller Tracewell to John D. McChesney, chief disbursing clerk, Geological Survey, June 28, 1905.)
In your communication of June 22, 1905, you request my decision of a question which you therein present as follows:
"The accompanying bills for medical attendance, rendered by Dr. Charles F. Hawley, for the benefit of two employees of the reclamation service in Arizona Territory, are pending settlement in this Office, and being in doubt as to the propriety of paying them, they are forwarded with the request that you will instruct me as to my duty in that regard.
"On January 8, 1904, by indorsement on letter from this Office dated December 2, 1903, the Secretary of the Interior approved a recommendation that medical and surgical attendance be provided for the benefit of the men employed in connection with the Salt River irrigation project, Arizona, and on February 25, 1904, special authority was granted by the Secretary to purchase medical and hospitial supplies and pay for the same from the reclamation fund established by the act of June 17, 1902 (32 Stat., 388). A physician was accordingly employed and stationed at Roosevelt, the headquarters of the project and the point at which the largest features of the work are to be performed.
"On October 18, 1904, one of the employees, Robert Schell by name, was seriously injured by the premature discharge of a blast, his death resulting some ten or twelve hours later. On May 8, 1905, John Ray, a teamster, was injured in a runaway accident, suffering a broken arm and other injuries of a serious nature. Both of these accidents occurred at points at some considerable distance from Roosevelt, and in both cases the necessity of securing immediate surgical assistance was urgent. On account of flood conditions the road between Roosevelt and the camp where these men were working was impassable. The town of Mesa, Ariz., was situated much nearer than Roosevelt to this camp and was the only place
where a surgeon could be obtained in such emergencies, and Dr. Charles F. Hawley was therefore called by telephone from that place. In both cases he responded, traveling by road 25 to 30 miles over the desert to reach the injured men. Bills of $25 and $60, respectively, have been presented for services rendered by Doctor Hawley on these occasions, and vouchers have been prepared by the engineer in charge for the payment of the amounts claimed, which are considered moderate in view of the nature of the services rendered and the travel necessitated thereby.
"In Volume VI, Decisions of the Comptroller of the Treasury, page 956, it is stated that there is no authority of law to furnish medicines or medical attendance to civilian employees of the Government except in cases where the contract of employment provides for the same, or where some existing regulation of the Department for which the service is rendered makes the furnishing of such supplies a part of the contract of employment.' In this connection it may be stated that while there is no written contract with the employees in question providing that the Government will furnish medicines and medical or surgical attendance, yet the men working on the project are all hired with the understanding that they are to be furnished with free medical attendance and hospital serv ices. It would thus appear that while not specifically so defined and set forth by written contract, the agreement of hiring includes the obligation to furnish medical attendance to the employees, and where the services of the physician regularly employed under proper authority are temporarily unavailable it is believed to be necessary in case of emergency, in pursuance of the agreement and understanding aforesaid, to secure such services from other sources.
"The construction of the works in connection with the Sait River project is authorized by the act of June 17, 1902 (32 Stat., 383), known as the reclamation act, section 10 of which states that:
"The Secretary of the Interior is authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this act into full force and effect.'
"In pursuance of the authority thus vested in him the Secretary of the Interior, by the indorsement of January 8, 1904, above referred to, authorized the employment of a physician for the benefit of the men employed on this work, thus recognizing the furnishing of such medical attendance as a proper incident to the carrying of the provisions of the act referred to into effect. The necessity of having medical or surgical assistance available having been recognized by the Secretary of the Interior, it is believed that the hiring of the surgeon in the cases mentioned was a proper action and within the scope