I have therefore to advise you that you are not authorized to pay the amount of the vouchers submitted by you from the appropriation for the reclamation fund. Even if the other view were the correct one the matter should be referred to the Auditor for the Interior Department for adjudication and transfer of appropriation. USE OF PERMANENT INDEFINITE APPROPRIA TIONS. The provision in section 5 of the act of June 20, 1874, that all unexpended balances of appropriations which shall have remained upon the books of the Treasury for two fiscal years shall be carried to the surplus fund and covered into the Treasury, has no application to the permanent indefinite appropriation created by section 3195, Revised Statutes, for the repayment of moneys deposited in the Treasury as surplus proceeds of the sale of property distrained for taxes. (Decision by Comptroller Tracewell, January 31, 1905.) The Auditor for the Treasury Department has reported for approval, disapproval, or modification a decision purporting to make an original construction of a statute as follows: "I have received from the Commissioner of Internal Revenue the claim of Rochel & Werkau for $69.36, which is approved by the Acting Secretary of the Treasury for $71.88, as per his letter of November 11, 1904, as follows: "The COMMISSIONER OF INTERNAL REVENUE. 66 "SIR: With your letter of the 7th instant you submitted the claim of Rochel & Werkau, of Clifton, Ill., for their proportionate share of the surplus arising from the sale of 9 barrels of spirits produced by the Sour Mash Distilling Company, serial Nos. 91770-74 and 91931-34, containing 265.61 taxable gallons, which were held in United States Bonded Warehouse No. 17. These packages were seized, distrained, forced out of bond, and sold at public auction. 666 "The entire amount received from said sale was $484.74; the internal-revenue taxes thereon amounted to $328.13, costs 55 cents, leaving a surplus of $156.06, which was deposited to the credit of the Secretary of the Treasury May 27, 1901, by a certificate of deposit No. 72, and subsequently, at the request of your office, under decision of the Comptroller, covered into the Treasury. "Messrs. Rochel & Werkau, of Clifton, Ill., who were the owners of warehouse receipt for 4 barrels of spirits, serial Nos. 91931-34, make application for their proportionate share of the proceeds. These 4 barrels contained 122.34 taxable gallons. Messrs. Rochel & Werkau are thus entitled to a return, under section 3195, Revised Statutes, of the proportion of $156.06 that 122.34 gallons bear to 265.61 gallons, or $71.88, and their claim is hereby approved for said amount, payable from the appropriation, under section 3689, Revised Statutes, for refunding moneys erroneously received and covered into the Treasury. "Respectfully, (Signed) "Application for payment of said surplus proceeds of sale was filed with the Commissioner of Internal Revenue August 5, 1902. "The claim arises under section 3195, Revised Statutes, which provides that the surplus proceeds of the sale of property liable to distraint for taxes shall be paid to the person legally entitled to receive the same, or, if he can not be found or refuses to receive the same, shall be deposited in the Treasury of the United States, to be there held for his use until he makes application therefor to the Secretary of the Treasury, who, upon such application and satisfactory proofs in support thereof, shall, by warrant on the Treasury, cause the same to be paid to the applicant.' "In the Taylor case, under section 36, act of August 5, 1861 (12 Stat., 304), for surplus proceeds of sale of land under the direct-tax laws, similar in its provisions to section 3195, Revised Statutes, the Supreme Court decided: "That the right of the owner of the land to recover the money which the Government held for him as his trustee did not become a claim on which suit could be brought, and such as was cognizable by the Court of Claims, until demand therefor had been made at the Treasury. Upon such demand the claim first accrued.' (U. S. Reports 104, p. 222.) "I have decided that the language in said section 3195, Revised Statutes, clearly expresses the intention of Congress that money shall be drawn from the Treasury for the purpose of paying the surplus proceeds of property sold for internalrevenue taxes to the proper applicant for the same, and therefor makes an appropriation which is permanent in character and indefinite as to time and amount (see Comptroller's Decisions, vol. 6, p. 514), and that said appropriation is available for the payment of claims arising under said section 3195, Revised Statutes, during the fiscal year in which the claims accrued, and for two fiscal years thereafter. (Sherman Decision, Department Circular No. 55, 1877.) "As this is an original construction of a statute it is submitted for your approval, disapproval, or modification as required by section 8, act of July 31, 1894." 28007-Vol. 11-05-26 If the decision of the Auditor that the provisions in section 3195 of the Revised Statutes makes an appropriation were an original construction of the statute there would be a question whether it would not be in contravention of the provision contained in the act of July 1, 1902 (32 Stat., 560), but prior to the passage of this act, in a decision rendered to the Secretary of the Treasury on July 18, 1901, I held that section 3195 (supra) makes an appropriation for the repayment of moneys deposited in the Treasury in accordance with its provisions. (MS. Dec., vol. 18, p. 155.) I assume this decision was transmitted to the Auditor for the Treasury, and therefore the section in question is not the subject-matter of original construction. In the construction above set out by the Auditor it is said: "Said appropriation is available for the payment of claims arising under said section 3195, Revised Statutes, during the fiscal year in which the claims accrued and for two fiscal years thereafter. (Sherman Decision, Department Circular No. 55, 1877.)" The Auditor is uuderstood by this statement to mean that the appropriation referred to, which is permanent in duration and indefinite as to amount, is not available for the payment of any claim for more than two fiscal years after the fiscal year in which the claim accrued. Section 5 of the act of June 20, 1874 (18 Stat., 110), the act construed by Secretary Sherman in his letter, provides that all unexpended balances of appropriations which shall have remained upon the books of the Treasury for two fiscal years shall be carried to the surplus fund and covered into the Treasury, with certain exceptions carried in the proviso thereto. In construing the purpose of this section Secretary Sherman said: "This section was adopted, after the fullest consideration by Congress, expressly to cut off the payment of accrued claims, by covering into the Treasury, after two years, the balance of the appropriation from which they might have been paid. The plain purpose of this act was to confine the officers of the Government to the allowance and payment of liabilities within three fiscal years. During that period the appropriation was available, and not afterwards." And also: "The mere fact that an appropriation is, in form, a permanent appropriation, instead of the usual annual appropria *** tion, should not give it greater force or take it out of the general rules as to appropriations. Such an appropriation, from the nature of it, may not in form be covered into the Treasury, but a claim ought not to be paid out of it at a different time nor be passed upon in a different manner than if it were payable out of a current annual appropriation. * The language supra was used in reference to permanent annual appropriations, and, in my judgment, should be given no broader sense. The appropriations being considered therein are those carried by sections 3687 and 3689, Revised Statutes. It was not an unreasonable construction but highly technical to give a permanent annual appropriation, though indefinite as to amount, to say that it was embraced within the above act, but it would, in my judgment, be an unreason. able construction to give a permanent indefinite appropriation, not annual, to say that it was embraced in the language "that all unexpended balances of appropriations which shall have remained upon the books of the Treasury for two fiscal years shall be carried to the surplus fund and covered into the Treasury." It is a moral impossibility to apply this language to a pure permanent, indefinite appropriation. If it were attempted such an appropriation would cease to exist at the end of the third fiscal year after it became operative. A thing ended with the third year can not be permanent. The effect of the Auditor's decision is to raise a statute of limitation against claims not filed, allowed, and paid within three years from the date on which they accrue. It has never been the practice of the accounting officers to treat this class of appropriations as being within the rule laid down by the Sherman circular or covered by the act in question. Payments of the three months' extra pay proper to Mexican soldiers have always been made from a permanent indefinite appropriation. Until about 1893 all claims for pay, bounty, etc., to soldiers of the late war were made from a permanent indefinite appropriation made for that purpose. About that time annual appropriations began to be made for this purpose. The latter conclusion of the Auditor, as to the availability of the appropriation in question, is not approved. SALARIES OF POSTMASTERS. A postmaster at a first, second, or third class office is properly chargeable, in the settlement of his accounts, with an amount received by him as increased salary where it appears that such increase was based upon an abnormal increase in the gross receipts of his office caused by the sale of large quantities of stamps, postal cards, and stamped envelopes to nonpatrons of his office. A postmaster at a first, second, or third class office is not chargeable with sums paid by him as disbursing officer to an assistant postmaster and other clerks, notwithstanding said assistant and clerks were allowed at said office because of an abnormal increase in the gross receipts of said office caused by the sale of large quantities of stamps, postal cards, and envelopes to nonpatrons of the office. (Decision by Comptroller Tracewell, February 3, 1905.) The Auditor for the Post-Office Department by settlements Nos. 93747 and 93748 of the accounts of Charles Burrows, postmaster at Rutherford, N. J., from July 1, 1900, to March 31, 1902, and from April 1, 1902, to September 30, 1904, respectively, found the following balances due the United States thereon, $175 and $800, respectively. By application filed November 25, 1904, the postmaster requested a revision of his account. These amounts, according to the Auditor's settlement, arose on account of salary wrongfully and unlawfully paid Mr. Burrows as such postmaster, covering a period from the fiscal year 1900 to 1905, and on account of clerk hire paid in his office, and payments made to an assistant postmaster, such latter payments being made by Mr. Burrows as a disbursing officer for the fiscal year 1904. The statement of the account by the Auditor showing this indebtedness to the Government by Mr. Burrows in detail is as follows: In account to March 31, 1902: Salary, fiscal year 1900-1901... $100.00 Salary, third and fourth quarters 1901 and first quarter 1902... 75.00 In account to September 30, 1904 (April 1 to June 30, 1904): Salary, fiscal year 1903.. 25.00 100.00 Salary, third and fourth quarters 1903 and first quar ter 1904. 300.00 425.00 |