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of the act entitled 'An act to repeal the timber-culture laws, and for other purposes,' approved March third, eighteen hundred and ninety-one, and acts supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as effect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any such lands.
"The question in my mind is whether the unexpended balance of the appropriation made for the protection of forest reserves for the current fiscal year was transferred to the Department of Agriculture immediately after the act, supra, became a law.
"I will thank you to advise me at the earliest practicable moment of your opinion in this matter, upon which depends the payment of the accounts presented to me for settlement." Section 24 of the act of March 3, 1891 (26 Stat., 1103), provides:
"That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land-bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof."
Since the passage of this act various provisions affecting forest reserves have been enacted by Congress, both as annual appropriations and general provisions incorporated therein and as separate acts, the principal among these being the general legislation on this subject contained in the act of June 4, 1897 (30 Stat., 34). In that act general provision was made for the reservation, survey, management, etc., of forest reserves, and it is the act to which specific reference has been made in all subsequent appropriations, as in that now under consideration. None of the acts above referred to contain provisions which affect the questions asked in your letter.
The appropriation for "Protection of forest reserves, 1905," found in the sundry civil act of April 28, 1904 (33 Stat., 483), provides:
"PROTECTION AND ADMINISTRATION OF FOREST RESERVES: To meet the expenses of executing the provisions of the sundry civil act approved June fourth, eighteen hundred and ninety-seven, for the care and administration of the forest reserves, to meet the expenses of forest inspectors and assistants, superintendents, supervisors, surveyors, rangers, and
for the employment of foresters and other emergency help in the prevention and extinguishment of forest fires, and for advertising dead and matured trees for sale within such reservations, three hundred and seventy-five thousand dollars: Provided, That forestry agents, superintendents, and supervisors, and other persons employed under this appropriation shall be selected by the Secretary of the Interior wholly with reference to their fitness and without regard for their political affiliations, and allowed per diem, subject to such rules and regulations as he may prescribe, in lieu of subsistence, at a rate not exceeding three dollars per day each, and actual necessary expenses for transportation, including necessary sleeping car fares: Provided further, That forestry agents, superintendents, supervisors, and all other persons employed in connection with the administration and protection of forest reservations shall, in all ways that are practicable, aid in the enforcement of the laws of the State or Territory in which said forest reservation is situated in relation to the protection of fish and game."
The questions to be determined are whether the appropriation "Protection of forest reserves, 1905," is now available for use in the execution of the laws relating to forest reserves, and, if so, whether or not it is under the control of the Secretary of Agriculture as an incident to the execution of the laws in relation to said reserves now under the control of that Secretary.
The appropriation in question was not made to the Secretary of the Interior, but was made to execute the laws for the protection of forest reserves, and as an incident to that duty it was, until the passage of the recent act, under the control of the Secretary of the Interior; but when the business of executing the laws passed to the Secretary of Agriculture the appropriation for the payment of the expenses necessarily passed to the Secretary of Agriculture.
I arrive at this conclusion for the further reason that in passing the act of February 1, 1905, supra, Congress did not make any other provision adequate at least for the continuance of the control over the subject-matter of the act.
Therefore you are advised that the appropriation "Protection of forest reserves, 1905," is now available for the purposes for which it was made, and that the control over it has passed to the Secretary of Agriculture; and that I see no reason why you should have anything further to do with such appropriation.
PRINTING FOR HOWARD UNIVERSITY.
Howard University in the District of Columbia is not a part of any Executive Department within the meaning of section 87 of the act of January 12, 1895, which provides that all printing for the Executive Departments shall be done at the Government Printing Office; and therefore printing and binding for said university is not required to be done at said office.
The appropriation for the law and general library of Howard University in the District of Columbia is applicable to the cost of printing and binding done for the university by private individuals. (Assistant Comptroller Mitchell to the Secretary of the Interior, February 11, 1905.)
I am in receipt of your communication of the 7th instant, as follows:
"I am in receipt of a letter from the president of the Howard University, requesting authority to expend the sum of $47.20 for having certain books, magazines, etc., bound by Albrecht & Co., of Baltimore, Md., the lowest bidders therefor, to be paid from the appropriation contained in the sundry civil act approved April 28, 1904 (33 Stat., 488) for 'law and general library, books, shelving, etc.,' for said university.
"It is desired, before taking any action in the matter, that the question be submitted to the Comptroller of the Treasury for an opinion as to whether such work may be done by the above-named firm, or whether the same must be done at the Government Printing Office, pursuant to the terms of the act providing for the publishing, printing, and binding, and distribution of public documents, approved January 12, 1895 (28 Stat., 622)."
The act of January 12, 1895 (28 Stat., 622), provides:
"SEC. 87. 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.”
The Howard University is an educational institution incorporated by the act of March 2, 1867 (14 Stat., 438), the grounds and buildings of which were obtained, under authority of the United States, with funds appropriated by Congress (see act of June 16, 1882, 22 Stat., 104). The act of March 2, 1867, supra, provides:
"SEC. 4. *
That the government of the university shall be vested in a board of trustees, of not less than thirteen members, who shall be elected by the corporators at their first meeting. * * They shall elect a president, a secretary
and a treasurer.
They shall also appoint such other officers, agents, or employees as the wants of the university may from time to time demand, in all cases fixing their compensation."
The institution was maintained by private funds until after the passage of the act of March 3, 1879 (20 Stat., 404), which made an appropriation of $10,000, as a part of the expenses of the District of Columbia, toward its maintenance. Annual appropriations have since been made to pay a part of the expenses of its maintenance.
The act of March 3, 1891 (26 Stat., 973), making the usual appropriation toward its maintenance provided:
"And the proper officers of the said university shall report annually to the Secretary of the Interior how the appropriation is expended."
The treasurer of said university is designated a special disbursing agent and disburses the funds appropriated by Congress for its maintenance.
Congress has passed no law putting the said university under the control of the Secretary of the Interior or making it a Government institution or office or branch of the Interior Department, other than to require it to report to the Secretary of the Interior, as provided in the act of March 3, 1891, supra.
This does not make it an executive department of the Government, or a branch or bureau of any executive department within the meaning of the act of January 12, 1895, supra, and said act does not apply to it. (See 11 Comp. Dec., 38, and cases cited therein.)
You are therefore authorized to make the payment indicated when the work is done by said firm if the claim is otherwise correct.
HOLDING TWO APPOINTMENTS AT THE SAME TIME.
Where, under the provisions of the act of April 23, 1904, a retired officer of the Army is placed on the retired list with the rank and retired pay of one grade above that held by him at the time of his retirement, such increased pay attaches to said office from the date he was actually placed on the retired list, and neither requires an acceptance by the officer, nor permits of a declination by him; and, therefore, where the effect of such action is to increase his compensation to $2,500, or over, he is prohibited by section 2 of the act of July 31, 1894, from holding at the same time any other office, except as therein provided, to which compensation is attached.
(Comptroller Tracewell to the Secretary of War, February 14, 1905.)
Under date of January 4, 1905, you transmitted to me a communication of the Paymaster-General of the Army requesting my decision of three questions therein presented as follows:
"I have the honor to submit for your decision the case of Capt. Charles E. Morse, retired, whose salary as such is $1,980 per annum. He holds the position of expert in the Bureau of Labor, Department of Commerce and Labor, at a salary of $2,000 per annum. Under the act of April 23, 1904, he has been designated by the President and confirmed by the Senate for advancement to the rank of major, and his salary as such would be $2,625 per annum. The following questions are presented:
"1. Can he continue to draw his salary as expert and receive the pay of major, retired? Or
"2. Can he elect to remain a captain and receive the pay of that grade and the pay of expert?
"3. If he may elect to remain a captain must such action be final and bar him at any future time from assuming the rank with pay of major?"
On February 6, 1905, I referred the communication of the Paymaster-General to the Secretary of Commerce and Labor, with a request for information upon the following questions:
"What position or positions in the Bureau of Labor were held by Captain Morse from April 23, 1904, to the present time?
"Under what provision of law were the positions held by him, and at what rates of compensation?"
Under date of February 9, 1905, said communication was returned with the following indorsement by the Commissioner of Labor thereon:
"Respectfully returned to the Comptroller of the Treasury, with information regarding the record of Capt. Charles E. Morse, U. S. Army, retired, in the Bureau of Labor.
"At the time of his advancement to the grade of major, April 23, 1904, Capt. Charles E. Morse held the position of disbursing clerk in the Bureau of Labor at a salary of $2,000 per annum, payable from the appropriation, 'Salaries, Department of Labor, 1904.' The legislative act for the fiscal year 1905 abolished the position of disbursing clerk in the Bureau of Labor and created in lieu of the same a clerkship of class 4, which he held from July 1, 1904, to September 15, 1904, at which time he was promoted to position of expert at