1902, supra, did not make an appropriation of said "Alaska fund," and that consequently said fund did not become available for use until after the passage of the act of March 3, 1905, supra, specifically appropriating it for the uses and purposes specified in the act of January 27, 1905. The care and custody of the insane of Alaska was not therefore otherwise provided for by law until March 3, 1905, and the appropriation made by the act of April 28, 1904, is available to pay for the care and custody of such insane until March 3, 1905.

On and after March 3, 1905, that part of the "Alaska fund” set apart for the care and maintenance of the insane of Alaska and the amount specifically appropriated for the care and custody of the insane of Alaska by the act of March 3, 1905, are both available to pay for such care and maintenance and custody.

On and after this date the care and custody of the insane in the district of Alaska are otherwise provided for by law and thereafter the appropriation made by the act of April 28, 1904, is not available.

The "Alaska fund" set apart and appropriated for the care and maintenance of the insane and the sum specifically appropriated by the act of March 3, 1905, for the same purpose are cumulative provisions, and either one or the other or both may be used to defray obligations incurred for the care, custody, and maintenance of the insane as provided for in the act of April 28, 1904.

For the reasons given the decision of the Auditor is approved.

TEN PER CENT INCREASE OF PAY FOR SERVICE AT FOREIGN STATIONS.

An officer of the Revenue-Cutter Service who, while assigned to duty in connection with the Louisiana Purchase Exposition, was sent to Germany for special services by and for the exposition company and not for duty as an officer of the Revenue-Cutter Service is not entitled for such service abroad to the 10 per cent increased pay provided for by the act of June 30, 1902, for commissioned officers serving at foreign stations.

(Comptroller Tracewell to the Secretary of the Treasury, May 6, 1905.)

In your communication of April 29, 1905, you request my decision of a question which you therein present as follows:

"1. Herewith is transmitted for your opinion a communication from George A. and William B. King, inclosing the claim of Lieut. Godfrey L. Carden, R. C. S., for 10 per cent increase of pay for services on shore in Europe from July 1, 1902, to April 10, 1903, while serving with the Louisiana Purchase Exposition.

"2. This officer was assigned to duty in connection with said exposition by Department letter of April 21, 1902 (copy inclosed), with the understanding that while on this special duty he would be allowed only duty pay, without allowances. He was relieved from this duty March 20, 1905.

"3. Lieutenant Carden was paid commutation for quarters and subsistence by the exposition while on this special duty, and he was not ordered to Europe by the Department."

The claim of Lieutenant Carden is for 10 per cent increase of pay for service at foreign stations from July 31, 1902, to April 10, 1903, inclusive, under orders of the chief of machinery of the Louisiana Purchase Exposition, dated July 28, 1902, to proceed to Essen or Meppen, Germany, in connection with a contemplated exhibit at the exposition by the Krupp establishment.

Section 3 of the act of April 12, 1902 (32 Stat., 100), provides that commissioned officers of the Revenue-Cutter Service shall receive the same pay as was then or shall thereafter be provided by law for officers of the Army of corresponding rank.

The act of June 30, 1902 (32 Stat., 512), making appropriation for the Army for the fiscal year 1903, contains the following provisions:

* *

*

"For additional ten per centum increase on pay of commissioned officers serving at foreign stations : Provided, That hereafter the pay proper of all commissioned officers and enlisted men serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such service shall be counted from the date of departure from said States to the date of return thereto."

I am of opinion that a commissioned officer of the RevenueCutter Service can only be regarded as serving at a foreign station, within the meaning of the foregoing provisions, when he is assigned to duty as an officer of the Revenue-Cutter Service at a foreign station. From the facts in this case it

appears that Lieutenant Carden was sent to Essen or Meppen, Germany, for special service by and for the Louisiana Purchase Exposition, and not for service as an officer of the Revenue-Cutter Service.

I am therefore of opinion that he is not entitled to the 10 per cent increase of pay provided for by the act of June 30, 1902, supra, for commissioned officers of the Army serving at foreign stations.

REFUNDMENT OF POSTAGE ERRONEOUSLY OR ILLEGALLY COLLECTED.

The provision in section 2 of the act of March 3, 1905, for the refundment out of the postal receipts in the possession of the postmaster" of postage erroneously or illegally collected, operates as an exception to section 407, Revised Statutes, which provides that the postal revenues and all debts due the Post-Office Department shall, when collected, be paid into the Treasury of the United States; and therefore such refundment is authorized, notwithstanding said act does not make a specific appropriation therefor.

(Decision by Comptroller Tracewell, May 8, 1905.)

1

The Auditor for the Post-Office Department has reported, for approval, disapproval, or modification, a decision making an original construction of a statute as follows:

"Section 2 of the act approved March 3, 1905, making appropriations for the service of the Post-Office Department for the fiscal year ended June 30, 1906, and for other purposes, provides, in part, as follows:

"SEC. 2. That hereafter, whenever it shall be shown to the satisfaction of the Postmaster-General that any postage is paid on any mail matter for which service is not rendered, or is collected in excess of the lawful rate, he may, in his discretion, authorize the postmaster at the office where paid to refund the proper amount out of the postal receipts in the possession of the postmaster: Provided, That this provision shall apply to all applications for such refunds pending in the Post-Office Department at the time of the passage of this act.'

"I transmit herewith a letter from the Third Assistant Postmaster-General, dated 21st ultimo, requesting this office to credit the account of George L. Holliday, postmaster at Pittsburg, Pa., with the sum of ten cents (104.), under the provisions of the above-quoted section. I also transmit the receipt of Julius L. Steinsapir for the said ten cents.

"I have decided that the section quoted does not carry with it an appropriation, and that the desired credit is not a proper entry in the postal account of Postmaster Holliday."

Section 407 of the Revised Statutes, as amended by the act of January 22, 1894 (28 Stat., 28-29), contains the following provision:

"The postal revenues and all debts due the Post-Office Department shall, when collected, be paid into the Treasury of the United States under the direction of the PostmasterGeneral." *

*

Section 4054 of the Revised Statutes provides as follows: "The money required for the postal service each year shall be appropriated by law out of the revenues of the service."

In the absence of other provision by law the PostmasterGeneral would not be authorized to use the postal revenues for refunding postage erroneously or illegally collected (11) Comp. Dec., 146), and a postmaster who should make such a refund would not be entitled to credit therefor. But the provision in section 2 of the act of March 3, 1905 (Public, No. 213), quoted by the Auditor, authorizes the Postmaster-General to make such refunds in cases in which applications therefor were pending in the Post-Office Department at the time of the passage of the act, and expressly provides that the amount thereof be refunded "out of the postal receipts in the possession of the postmaster." This provision operates as an exception to the provision contained in section 407, supra, and consequently no appropriation is required therefor.

The Postmaster-General states in his communication to the Auditor that the case referred to was pending at the time of the passage of the act. The postmaster is therefore entitled to credit for the amount so refunded by him.

The decision of the Auditor is modified as indicated herein.

FEES AND EXPENSES OF MARSHALS IN INSANITY PROCEEDINGS IN ALASKA.

Fees and expenses of marshals in insanity proceedings in Alaska, if incurred prior to and during the trial of the case, are properly payable from the appropriation for salaries, fees, and expenses of marshals.

(Comptroller Tracewell to the Attorney-General, May 10, 1905.)

I am in receipt of your letter of the 26th ultimo, requesting my decision on the question propounded by J. M. Shoup,

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United States marshal for the first division of the district of Alaska, in his letter to you of the 14th ultimo, as follows:

"Referring to the act approved January 27, 1905 (33 Stat., 619), providing for the care and support of insane persons in the district of Alaska, I have the honor to ask to be advised as to whether or not the marshal's fees and expenses incurred in effecting the arrest and for service of process during the trial of a person charged with being insane, should be paid from the appropriation Salaries, fees, and expenses of marshals, United States courts.' The act provides that for the service of process in connection with and the guarding and transportation of the insane the marshal shall be compensated from the same source and in the same manner as in the case of prisoners convicted of crime, but it also provides that all the compensation, mileage, fees, and all other expenses and outlays incident to said proceedings shall be audited and allowed by the district judge and paid by the clerk as the incidental expenses of the court are paid, and I am uncertain as to whether this latter provision covers the fees and expenses of the marshal prior to the judgment.

The act approved June 6, 1900 (31 Stat., 322), in relation to the care of the insane of Alaska, provides:

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"He shall, subject to the direction and approval of the Secretary of the Interior, advertise for and receive bids, and, in behalf of the United States, contract from year to year with the responsible asylum or sanitarium west of the main range of the Rocky Mountains submitting the lowest bid, for the care and custody of persons legally adjudged insane in said district of Alaska; the cost of advertising for bids, executing the contract, and caring for the insane to be paid, until otherwise provided by law, by the Secretary of the Treasury, out of any money in the Treasury not otherwise appropriated, on accounts and vouchers duly approved by the governor and the Secretary of the Interior."

On page 325 thereof the following provision is made for the service of process and the guarding and transportation of the insane for Alaska:

"The marshal shall deliver persons duly adjudged insane in the district to the authorities of such asylum or sanitarium as the governor, with the approval of the Secretary of Interior, may designate, and for the service of process in connection with and the guarding and transportation of the insane he shall be compensated as in the case of prisoners.

The act of January 27, 1905 (33 Stat., 620), makes the following provision for the pay of marshals for service of