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'SEC. 1306. For any sums not less than five dollars so deposited for the period of six months, or longer, the soldier, on his final discharge, shall be paid interest at the rate of four per centum per annum.
"SEC. 1307. The system of deposits herein established shall be carried into execution under such regulations as may be established by the Secretary of War.
"SEC. 1308. The amounts of deposits and clothing balances accumulating to the soldier's credit under sections thirteen hundred and two and thirteen hundred and five shall, when payable to him upon his discharge, be paid out of the appropriations for "pay of the Army" for the then current fiscal year.'
"The original of the above sections was the act of May 15, 1872, chapter 161 (17 Stat., 117), entitled 'An act to establish a system of deposits, to prevent desertion, and to elevate the condition of the rank and file of the Army.' They appear in the Revised Statutes under Title XIV-The Army.'
"Although the Marine Corps is in many respects a separate and distinct organization, and usually treated as such in the legislation of Congress, it is settled that its primary position in the military service of the United States is that of part of the Navy. (Wilkes y. Dinsman, 7 How., 89; United States v. Dunn, 120 U. S., 249; 19 Opin., A. G., 616, 618; 22 id., 377, 379.) This being so, special legislation like the above, referring only to the Army, would not ordinarily be construed to apply to the Marine Corps any more than to the Navy.
In 19 Op. Att. Gen., 616, Attorney-General Miller held that the corresponding act of February 9, 1889, chapter 119 (25 Stat., 657), entitled An act to provide for the deposit of the savings of seamen of the United States Navy,' and which in its first section specified any enlisted man or appointed petty officer of the Navy' as its beneficiaries, did not apply to enlisted men of the Marine Corps. In view of its general affiliation with the Navy there was certainly some ground to say that that act was intended to apply to that corps. Mr. Miller recognized this, and said that if the act stood alone on the use of the term 'enlisted men,' in its first section, the case of United States v. Dunn, above cited, might properly be accepted as conclusive of its application to the Marine Corps; but that the use of the terms seamen' and sailors,' so inapplicable to marines, and the requirement that money deposited under the act should pass to the credit of the appropriation for 'pay for the Navy,' there being annually a separate appropriation for pay for the Marine Corps, seemed to show that marines were not in contemplation.
"The correctness of Mr. Miller's view is not questioned. But if the act of 1889, for the benefit of enlisted men and petty
officers of the Navy, could not properly be construed to apply to the Marine Corps, which is primarily a component part of the Navy, the sections in question, for the benefit of enlisted men of the Army, the service of the Marine Corps, which is, as stated by Mr. Miller, unusual and exceptional, can not be so construed. Those sections refer in several places to 'soldiers,' a term not ordinarily applied to marines in legislative acts; the deposits are to be made with the army paymaster and placed to the credit of the appropriation for the 'pay of the Army,' and, unlike the case of the Navy, there is no such general affiliation of the Marine Corps with the Army as would suggest any basis for holding that it was within the purview of the statute.
"The failure to provide the marines with similar opportunities for saving was doubtless merely an oversight, as there seems to be no good reason for their exception. But as much might have been said for the sailors prior to the act of February 9, 1889. The remedy for such an omission is by legislation. It can not be supplied by construction."
I concur in the opinion of the Attorney-General, and I have to advise you that you are not authorized to receive deposits from enlisted men of the Marine Corps or to pay interest thereon.
In the case of Andrew David, private, United States Marine Corps, from whom you accepted a deposit, you should return the same to him without interest.
CONSTRUCTION OF ACTS OF CONGRESS RELATIVE TO THE BUILDING OF THE PANAMA CANAL.
The provision in section 87 of the act of January 12, 1895, requiring all printing for the executive and judicial departments to be done at the Government Printing Office has no application to printing for the Isthmian Canal Commission.
Under the power conferred upon him by the act of June 28, 1902, the President is authorized to rent offices in the District of Columbia for the use of the Isthmian Canal Commission, notwithstanding the provision in the act of March 3, 1877, that no contract should be made for the rent of any building, or part of building, in the District of Columbia unless appropriated for in terms.
The allotment or assignment of pay by employees of the Isthmian Canal Commission is not authorized.
The provision in section 3709, Revised Statutes, relative to advertising for supplies and the letting of contracts is applicable to work done in connection with the construction of the canal.
The local revenues of the Isthmian Canal Zone are not such moneys as are required to be accounted for to the Treasury Department, but said revenues are to be accounted for in such manner and under such rules and regulations as the President and the Canal Commission shall prescribe, a report of the same being made to the President and to Congress, as required by the act of June 28, 1902.
(Comptroller Tracewell to the chairman of the Isthmian Canal Commission, July 26, 1904.)
I have received your letter of the 1st instant, wherein you say:
"After conference with the Secretary of War with reference to future disbursements under the direction of this Commission, I respectfully request that you give a decision upon the following points:
"(1) In conducting the various branches of work, large quantities of printed books and blanks will be required for use in the Commission's main and subsidiary offices on the Isthmus. Does the fact that a portion of these will also be used in the Washington branch office require them to be obtained from the Government Printing Office, under section 87, act of January 12, 1895?
(2) Does the act of June 28, 1902, authorize rent of offices in the District of Columbia within the meaning of the act of March 3, 1877? (19 Stat., 370.)
"(3) In case of the adoption by the Commission of a system of allotting pay, by employees on the Isthmus, similar to that in use in the Navy, would the treasurer of the Commission be authorized to pay allotments as made?
"(4) Is the Commission required to advertise for bids for supplies for use on the Isthmus, or in its branch office at Washington, in accordance with section 3709, Revised Statutes?
"(5) Attention is invited to the last paragraph, page 8, of the President's letter of May 9, 1904, addressed to the Secretary of War (copy herewith), which states:
"The necessary expenses incurred by the Commission in carrying on the government of the Canal Zone will be defrayed from the local revenues as far as the said revenues may be sufficient, and the remainder will be met from the appropriation made by the fifth section of the act of Congress approved June 28, 1902.'
Are the revenues from the government of the Canal Zone public moneys of the United States? And should the receipts and disbursements of the same be accounted for to the Treasury Department?"
The questions presented by you will be answered in the order named.
1. By section 87 of the act of January 12, 1895 (28 Stat., 622), it is provided that:
"All printing, binding, and blank books for the Senate or House of Representatives and for the Executive and Judicial Departments shall be done at the Government Printing Office except in cases otherwise provided by law."
It can not be said that the Isthmian Canal Commission is an executive department of the Government within the meaning of the act just quoted. Nor is it a branch or bureau of any of the Executive Departments, although, for administrative purposes, it has been placed under the supervision of the Secretary of War by the President in his letter of May 9, 1904. It is a separate and distinct establishment authorized and created by Congress for the performance of certain work and appropriation made for its necessary expenses. The War Department is not required to furnish, or cause to be done, such printing or binding or books as may be necessary for the use of the Commission, and such printing or binding or books as are furnished for use of the Commission could not therefore be regarded as being furnished for the War Department or any of its bureaus.
I am therefore of opinion that the provisions of section 87 above quoted do not apply to the printing to be done for your Commission, even though part of said work is to be used at your branch office in Washington. (See MS. Dec., vol. 29, p. 567; 10 Comp. Dec., 368; 3 Comp. Dec., 127; and decision of May 11, 1904, addressed to Col. Charles H. Whipple, chief disbursing officer of the War College.)
2. In answer to your second question, it may be stated as a general proposition that the laws of the United States apply to the use and disbursement of the money appropriated by Congress for building the canal, unless the provisions of the later statutes relating to the canal are repugnant to the earlier general laws, in which event, of course, the earlier laws must give way to the later ones.
The act of March 3, 1877 (19 Stat., 370), provides:
* * hereafter no contract shall be made for the rent of any building, or part of any building, to be used for the purposes of the Government in the District of Columbia, until an appropriation therefor shall have been made in terms by Congress, and that this clause be regarded as notice to all contractors or lessors of any such building or any part of building."
This act is plain and unambiguous, and would prevent the renting of any building or part thereof in the District of Columbia for the use of the Commission, unless authority therefor can be found in later acts.
Section 7 of the act of June 28, 1902 (32 Stat., 483-484), provides:
"The President shall cause to be provided and assigned for the use of the Commission such offices as may, with the suitable equipment of the same, be necessary and proper, in his discretion, for the proper discharge of the duties thereof."
This act vests in the President a discretion, without limitation, to provide proper and necessary offices for the use of the Commission. To hold that the act of March 3, 1877, supra, applies to the renting of offices for the Commission in the District of Columbia, would be to say that said act could impose a limitation on the discretion of the President, which is not found in the act of June 28, 1902, supra. The discretion there vested in the President is thus repugnant to the provisions of the act of 1877, and therefore the former act must yield to that of 1902.
Because of this I conclude that the President is authorized to cause the renting of offices for the use of the Commission in the District of Columbia, if he chooses to do so.
3. In answer to your third question, as to the authority of employees of the Commission to allot or assign their pay, and the treasurer of the Commission to pay the same to the allottee or assignee, I have to say that such a practice seems to be in contravention of section 3477 of the Revised Statutes, and I find nothing in the law relating to the Canal Commission which would take the case out of the operation of said section.
Therefore I am of the opinion there is no authority to allot or assign the pay in question.
4. In answer to your fourth question, I have to say that I find nothing in the laws relating to the canal which would appear to supersede the provisions of section 3709, Revised Statutes, in regard to advertising for supplies and the letting of contracts for the work to be done on the canal. Therefore the provisions of said section apply to the work done on the canal. Even if there were doubts on this point, such doubts would be set at rest by the following paragraph in the letter