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statutory place which he held and the money provided therefor will lapse, and the Bureau will be deprived of that much
"Under these conditions and because it is desirable to have men on the road at times who are filling statutory places, and there are three such men now out, and owing to the importance and urgency attending the situation, you are respectfully requested to submit the within statements to the Comptroller of the Treasury for his opinion as to whether or not a detailed statutory employee can draw per diem as a special agent, he being detailed as such by you."
The provision for compensation and per diem of special agents contained in the act of March 3, 1903 (32 Stat., 1081), to which you refer, is as follows:
"For compensation, to be fixed by the Secretary of Commerce and Labor, of such special agents in the Bureau of Corporations, and for per diem, subject to such rules and regulations as the Secretary of Commerce and Labor may prescribe, in lieu of subsistence at a rate not exceeding four dollars per day to each of said special agents while absent from their homes on duty, and for actual necessary traveling expenses for said special agents including necessary sleepingcar fares."
A similar provision for per diem in lieu of subsistence is contained in the act of March 18, 1904 (33 Stat., 136), for special attorneys, special examiners, special agents, and temporary assistants. By the terms of these provisions the allowance of a per diem in lieu of subsistence is restricted to the classes of employees specified therein.
The act of March 3, 1875 (18 Stat., 452), contains the following provision:
"That hereafter only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States, except marshals, district attorneys, and clerks of the courts of the United States and their deputies, and all allowances for mileages and transportation in excess of the amount actually paid, except as above excepted, are hereby declared illegal, and no credit shall be allowed to any of the disbursing officers of the United States for payment or allowances in violation of this provision.”
Under this provision you are authorized to allow and pay to the clerks in the Bureau of Corporations, to whom you refer, actual traveling expenses only, while traveling on official business. The detail of any of these clerks for duty as a
special agent, or as a special attorney, or as a special examiner, or as a temporary assistant, does not change his actual employment from that of clerk to that of special agent, or of special attorney, etc., and his compensation and allowance for traveling expenses while so detailed are still governed by the laws applicable to such clerks.
I have the honor, therefore, to reply to your question in the negative.
TELEPHONE SERVICE FOR THE GOVERNMENT HOSPITAL FOR THE INSANE.
The provision in the act of April 27, 1904, fixing the charges for telephone service in the District of Columbia, has no application to telephone service furnished the Government Hospital for the Insane, or any other Department of the General Government.
(Comptroller Tracewell to the Secretary of the Interior, July 19, 1904.)
I have your letter of the 8th instant, as follows:
"I transmit herewith a copy of a letter from the superintendent of the Government Hospital for the Insane, inclosing a proposition from the Chesapeake and Potomac Telephone Company, of Washington, D. C., for the continuation of the telephone service of that institution during the present year. Said proposition is as follows:
"The system proposed consists of a common battery switchboard, with operator's set of telephones, wired thereto 78 complete telephone stations and 13 auxiliary bells located on the premises, and 4 trunk lines connecting the switchboard above mentioned with the public exchange of this company. 2. The charge for the system detailed above for the year ending June 30, 1905, including local exchange service, will be $1,881, payable quarterly.
3. Additional stations will be supplied at the rate of $12 per annum each for the instruments and interior wiring. An additional charge will be made for all outside wiring, depending upon the length of circuit required. Additional trunk lines to this company's public exchange will be furnished at the rate of $24 per annum each.
4. It should be understood that the rate quoted is based upon the present use of the service, and that the rate to be quoted for the following and each succeeding year will be based upon the actual number of messages sent during the preceding year.
"If this proposal is satisfactory to you, will you kindly let us have your formal acceptance.'
"In March, 1900, the question as to the authority of the superintendent for the installation and maintenance of a telephone system at the Government Hospital for the Insane was submitted for your consideration, and on the 10th of March, 1900, you rendered an opinion indicating the conditions under which such system could be installed. Thereafter, a telephone system providing for unlimited service was duly installed; and that is the character of service proposed to be supplied by the company during the present fiscal year. "Payments for service rendered by this company have heretofore been made under the provisions of the act of June 30, 1898 (30 Stat., 538), as follows:
"Provided, That from and after the passage of this act it shall be unlawful for any person or any telephone company doing business in the District of Columbia to charge or receive more than fifty dollars per annum for the use of a telephone on a separate wire; forty dollars for each telephone, there being not more than two on a wire; thirty dollars for each telephone, there being not more than three on a wire, and twenty-five dollars for each telephone, there being four or more on the same wire.'
"In the act of Congress approved April 27, 1904, making appropriations for the expenses of the government of the District of Columbia for the fiscal year ending June 30, 1905, and for other purposes (pamphlet edition of the statutes passed at the first and second sessions of the Fifty-eighth Congress, p. 374), additional legislation in regard to telephone service in the District of Columbia is enacted, to wit:
"Provided, That no part of the money herein appropriated shall be used for payment to any telephone company doing business in the District of Columbia for the use of any telephone within said District, for communicating therefrom, to any other telephone connected to a central office of such company in the District of Columbia at rates in excess of the following: Sixty dollars per annum for a telephone on an individual metallic circuit, forty-eight dollars per annum for each telephone on the same premises, there being not more than two on the same metallic circuit, and no contract shall be made with any telephone company for such use of such telephones in excess of the rates herein specified: Provided, That until the population of the city of Washington shall be three hundred and fifty thousand or over, no more than the above specified rates shall be charged by any telephone company doing business in the District of Columbia for such use of such telephones at private residences within the District of Columbia, and any acts or parts of acts heretofore enacted fixing
telephone rates for grounded circuits in the District of Columbia are hereby repealed.'
"In view of this legislation, I have to request that you will favor me with an opinion as to whether so much of the act of June 30, 1898, supra, as relates to telephones is still in force, or whether it has been superseded by the provisions of the act of April 27, 1904, above mentioned. Also, whether a contract can lawfully be entered into with this company upon the basis of its proposition, that the rate to be quoted for the following and each succeeding year will be based upon the actual number of messages sent during the preceding fiscal year.'"
In an opinion rendered by this office to the Interstate Commerce Commission on June 20, 1904, it was held that the act of April 27, 1904, supra, repealed the act of June 30, 1898, supra, which was the only prior law on the subject of charges for telephone service in the District of Columbia. It was further decided in said opinion that the act of April 27, 1904, supra, had no application to telephone service furnished the Interstate Commerce Commission, or any other department of the General Government, as distinguished from the government of the District of Columbia.
I therefore have the honor to advise you that there is now no law regulating charges for telephone service which would apply to telephone service furnished the Government Hospital for the Insane. The proper administrative officers have authority to contract for telephone service for said institution at such rates and upon such terms, within the limits of their appropriations, as they may deem proper. What kind, or class, of service is most desirable, and whether the rates the company propose to charge are reasonable and the best obtainable, are administrative functions which must be determined by the proper administrative officers.
In answer to your question as to whether a contract can be lawfully entered into with the telephone company upon the basis of its proposition "that the rate to be quoted for the following and each succeeding year will be based upon the actual number of messages sent during the preceding fiscal year,” I would state that any provision in the contract for the current fiscal year fixing the rate for subsequent fiscal years would be unauthorized, and would not be binding upon the Government.
COMPUTING PAYMENTS OF ANNUAL OR MONTHLY COMPENSATION IN THE ARMY.
The provision in section 4 of the act of April 28, 1904, for computing payments of annual or monthly compensation, is applicable to payments of annual or monthly compensation in the Army.
(Comptroller Tracewell to the Secretary of War, July 19, 1904.)
I am in receipt of your indorsement of June 28, 1904, upon my decision of June 14, 1904, concerning the construction of Treasury Circular No. 46, together with the indorsement and recommendation of the Paymaster-General under date of June 24, 1904.
You invite my attention by your indorsement to that decision with a view to its reconsideration, as it affects payments out of the appropriations for the support of the Army.
I have given these indorsements careful consideration, and am unable to see any good or sufficient reason why a different rule should prevail as regards payments of annual or monthly salaries or compensation in the Army that do not apply to other payments of such salaries or compensation in other branches of the public service. The laws, as pointed out in the decision of this office of June 14, 1904, are substantially identical. The regulation referred to by the PaymasterGeneral was not overlooked in the decision. It is the province of regulations to enforce existing law, not to make or alter the same. When either of the latter results is sought to be obtained by a regulation, such regulation is necessarily ultra vires and void ab initio.
Section 4 of the act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1905, and the act of March 2, 1903, both quoted in such decision, seem to plainly contemplate two conditions affecting payments of annual and monthly salaries or compensations; one where the full month in question has been served by the person to be paid, the other where only a part of the month in question has been served. In the first instance, each month, regardless of its actual length, is to be treated as having thirty days. In the second instance payments should be made at the rate of one-thirtieth of the monthly salary or compensation, or, one-thirtieth of the one-twelfth of an annual salary for