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The appropriation made in the act of April 28, 1904, for the custody, care, and protection of "lands and other property of the United States" is exclusively applicable to the cost of signs for the protection of public building sites on which no buildings have been erected.

(Comptroller Tracewell to the Secretary of the Treasury, April 29, 1905.)

In your communication of April 22, 1905, you request my decision of questions which you therein present as follows:

"This Department has in its custody and control a number of pieces of property acquired by authority of Congress for public building sites. These properties may be divided, for convenience of consideration, into two classes, viz, those on which public buildings have been authorized to be constructed, but where, for reasons satisfactory to the Department, building operations have been postponed, and those where no buildings have been authorized.

"The Department is being called upon constantly to care for these properties, in various ways, for instance, for placing fences or other protection about excavations thereon, left by the removal of buildings previously on such sites; for cutting weeds and grass, in compliance with municipal health regulations; for placing fences around such sites to prevent them from becoming dumping grounds for ashes and refuse, or to exclude trespassers, etc.

"The Department has the honor to inquire whether it has authority in the cases where buildings have been authorized, but where building operations have not yet been commenced, to care for such sites from the respective appropriations for the acquisition of sites and the erection of buildings, or from the annual appropriation for 'Repairs and preservation of public buildings,' and in those cases where sites only have been authorized, from any balance remaining to the credit of the respective appropriations for the purchase of sites, or from the appropriation for 'Repairs and preservation of public buildings.'

I will first consider your question concerning "those cases where sites only have been authorized." The following is a case of this kind. Section 18 of the act of March 3, 1903 (32 Stat., 1212), provides as follows:

"That the Secretary of the Treasury be, and he is hereby, authorized to acquire by purchase, condemnation, or other

wise, a suitable site in the city of Toledo and State of Ohio upon which to erect a building for the use and accommodation of the United States post-office and other governmental offices in said city: Provided, That the site selected shall consist of an entire block or square of ground, bounded on each side by a street, and shall consist in area of not less than seventy thousand square feet, within a limit of cost of two hundred thousand dollars, hereby fixed.

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It is understood that this site has been purchased at a cost of $135,135.68, leaving a balance unexpended of $64,864.32; and that a request has been made for authority to procure signs to warn people from trespassing on the site, from dumping ashes and rubbish thereon, etc. I am of opinion that the above appropriation is limited by its terms to the procurement of the site, and that this object having been accomplished the balance remaining unexpended is not available for further expenditure, and that, if it were, it would not be applicable to expenses for the care and protection of the site.

The appropriation for repairs and preservation of public buildings for the fiscal year 1905 (33 Stat., 397) provides as follows:

"Repairs and preservation of custom-houses, court-houses, and post-offices, and quarantine stations, buildings and wharf at Sitka, Alaska, and the other public buildings and the grounds thereof under the control of the Treasury Department exclusive of marine hospitals."

The act of April 28, 1904 (33 Stat., 465), also contains an appropriation for the fiscal year 1905, as follows:

"For custody, care, protection, and expenses of sales of lands and other property of the United States, the examination of titles, recording of deeds, advertising, and auctioneer fees, four hundred dollars."

I think the provision in the appropriation for repairs and preservation of public buildings for preservation "of the grounds thereof" means the preservation of the grounds on which such buildings are located. This appropriation is primarily for repairs and preservation of the buildings. Prior to the appropriation for the fiscal year 1898 the annual appropriations for this object did not contain this provision, which was inserted for the first time in the act of June 4, 1897 (30 Stat., 13). I think, therefore, the words "the grounds thereof" have reference only to the grounds of the buildings for which the provision for repairs and preservation is made.

The provision, "lands and other property of the United States," in the appropriation for custody, care, and protection of such lands and property has no other limitation than that of being lands or property of the United States. I am therefore of opinion that this appropriation is exclusively applicable to expenditures for signs for the protection of sites for public buildings on which no buildings are located. The foregoing considerations are also applicable to your question whether the respective appropriations for the acquisition of sites for and the erection thereon of public buildings, or the appropriation for repairs and preservation of public buildings, are applicable to expenditures for the care of the sites procured therefor in cases where the erection of buildings thereon has not been commenced. From what has been said it is clear that neither an appropriation for a site nor the appropriation for repairs and preservation of public buildings is applicable thereto. I am also of opinion that no expenditure which is not necessary or appropriate or incident to the erection of the public building for which an appropriation has been made can properly be incurred under or paid from such appropriation.

The question whether a particular expenditure is necessary or appropriate or incident thereto can only be determined by the particular facts in each case. Therefore I can not render any decision which will govern all cases; but if such a question arises in any particular case; the particular facts therein should be presented for consideration.


An employee of the Department of Commerce and Labor may be reimbursed for cab hire paid by him in the District of Columbia where the primary object of the expenditure was the carriage of property, and the transportation of the employee was merely an incident thereto. (Comptroller Tracewell to W. L. Soleau, disbursing clerk, Department of Commerce and Labor, April 29, 1905.)

I am in receipt of your letter of the 14th instant submitting voucher in favor of H. H. Pierce for reimbursement of cab hire paid by him March 2, 1905, with request for opinion as

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to its payment from the appropriation "Contingent expenses of Department of Commerce and Labor, 1905." The chief of the division of printing, at whose instance the services were rendered, in a letter which is forwarded by you, explains that the expense was for the delivery of copy and proof of an important confidential report to the Government Printing Office, in the early morning hours of March 2, 1905, when no other means of transportation was available; that it was necessary to complete the report before the adjournment of Congress, said report being of such importance that it was not deemed advisable to intrust it to messenger boys.

Said appropriation for contingent expenses (33 Stat., 139) is as follows:


"Contingent expenses, Department of Commerce and Labor: For contingent expenses of the offices and bureaus of the Department for which appropriations for contingent and miscellaneous expenses are not specifically made, namely: For the purchase of ** * freight and express charges, postage, telegraph and telephone service, typewriters and adding machines, and all other miscellaneous items and necessary expenses not included in the foregoing, seventy-five thousand dollars, which sum shall be so apportioned as to prevent a deficiency therein."

I have repeatedly held that traveling expenses of employees within the District of Columbia can not be paid by the Government (9 Comp. Dec., 359; 10 id., 455), but I do not think that rule applies in a case like this, where the sole object of the service seems to have been the transportation of Government property. Where the prime object is to transport property, the service is in the nature of a freight or express movement, but where the carriage of the property is merely an incident to the transportation of a Government employee the service is then for travel and payment therefor prohibited, as above stated.

You are therefore advised that, if the account you present has the necessary approval of the head of the Department and is otherwise correct, you are authorized to pay the same out of the appropriation named by you.


An officer of the Army who was convicted by the civil courts of the Philippine Islands, and released under bond pending an appeal to a higher court, is not entitled to pay pending the final determination of the appeal.

(Assistant Comptroller Mitchell to the Secretary of War, April 29, 1905.)

In your communication of April 15, 1905, you request my decision of a question which you therein present, as follows:

"I beg to forward herewith an inquiry from the Commanding General, Philippines Division, regarding the pay status of Maj. Frank DeL. Carrington, First Infantry, together with a memorandum thereon from the Paymaster-General of the Army. It will be noted in the latter that the Auditor for the War Department has stated that he will suspend payments made to Major Carrington for time absent in the hands of civil authorities, such action being due to paragraph 1399, Army Regulations, and decisions of the Comptroller of the Treasury in cases of enlisted men. There appears to be no statute which bears directly on the case.

"Major Carrington was tried for certain offenses by the civil courts in the Philippine Islands. It is understood that he offered no defense, except as to the jurisdiction of the court to try him. He was found guilty, a fine was imposed by the court, and, in addition, he was sentenced to a long period of confinement something like forty years. He has appealed his case to a higher court, and pending decision on this appeal the court authorized bail in his case, and he is now at liberty under bond. He has a technical status of duty, on detached service from his proper command, with station at Manila, P. I.

"In view of the peculiar circumstances surrounding this case it seems desirable, if it is possible to do so, that Major Carrington be allowed his pay and allowances until the appeal is heard and the matter finally disposed of.

"Therefore I hereby appeal from the decision of the Auditor for the War Department in this case and ask for your ruling in the matter."

I am informed at the office of the Auditor for the War Department that no account is pending in that office involving a payment made to Major Carrington for time during which he was absent in the custody of the civil authorities;

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