Acting Comptroller Foree to the Attorney General, October 16, 1916: "I am transmitting herewith copy of a letter dated the 23d instant from the Comptroller of the Currency, stating a specific case, in which it is proposed that a national-bank examiner who may be temporarily detailed to assist a United States attorney in the preparation of a criminal case arising under the national banking laws, in which case said examiner is to be called as a witness for the Government, shall be compensated from an appropriation under the control of this department. "The department has in mind the advance decision addressed by your predecessor to Mr. O. T. Wood, United States marshal at Topeka, Kans., under date of August 19, 1915, wherein it was held that national-bank examiners are salaried officers of the United States, and that such officers when subpoenaed to testify in a criminal proceeding instituted by the United States are entitled to be reimbursed, under the provisions of section 850 of the Revised Statutes, for their actual and necessary expenses incurred by reason of their being called as witnesses, but that the payment of a per diem compensation from any appropriation allotted to this department is not authorized by law. However, the proposition now submitted by the Comptroller of the Currency raises a somewhat different question, and I have the honor to request a ruling from you in the premises at your earliest convenience. "If you should hold that a national-bank examiner may be compensated by this department under the circumstances presented, please indicate from what appropriation such compensation is properly payable." The letter of the Comptroller of the Currency to which you refer is as follows: "This bureau is occasionally requested by your department to instruct one of the national-bank examiners to report to the United States attorney for the purpose of assisting him in the preparation of a case, in addition to the examiner testifying as a witness before the grand jury or in the trial of the case. "When properly subpoenaed, of course, the examiner will be instructed to report at the time and place specified in the subpœna. His status under these circumstances will be 'On official business,' his salary continuing to be paid out of the fund with the Treasurer of the United States entitled 'Salaries and expenses, national-bank examiners, special fund,' and his transportation and subsistence expenses incident to obeying the subpoena being borne by your department in accordance with section 850, Revised Statutes. "Where, however, it is requested that an examiner be instructed to report to a United States attorney for the purpose of assisting him in the preparation of a case, which amounts to detailing or loaning an employee of this bureau to your department, it is believed that his salary and expenses during the time he is so detailed should be borne by your department and not by this office, especially in view. of the fact that Congress makes appropriation for defraying expenses of this character by your department. "The fund with the Treasurer of the United States, 'Salaries and expenses, national-bank examiners, special fund,' is raised by assessment upon the national banks and is, under the law, to be disbursed only for the specific purpose of defraying the expenses of the examinations of the banks provided by law. It is therefore believed that the salary of an examiner detailed or loaned to your department would not be a legitimate expense against this fund, and it is suggested that your department make some arrangement for paying the salaries and expenses of the national-bank examiners when loaned or detailed to your department for any purpose. "As the United States attorney at Houston, Tex., has requested this office to instruct National Bank Examiner E. S. Jernegan to report to him four or five days prior to October 16, 1916, the date on which the case of the United States v. H. J. Bolton et al., former officers of the Wharton National Bank, Wharton, Tex., is set for trial, for the purpose of assisting him in the preparation of his case, I venture to hope you will favor this office with your reply as early as convenient." The status as to salary and expenses of a bank examiner who testifies for the Government as a witness to facts is settled by the decision of August 19, 1915 (74 MS. Comp. Dec., 748). That decision dealt broadly with the general question submitted without undertaking to determine future questions which might arise under special conditions. National-bank examiners are charged primarily with the duty of examining banks, and of developing and disclosing any unlawful conditions which may be found to exist. Should an examination result in a legal proceeding, either civil or criminal in character, against the bank or its officers, and should it be necessary for the examiner to aid a United States attorney in the preparation of the case for presentment or trial, it would undoubtedly be proper for the examiner in his official capacity to give the attorney the benefit of his knowledge of the facts of the case, and thus to carry forward and complete the work of his examination. While so engaged both his salary and expenses are properly chargeable to the fund provided by law for the salary and expenses of bank examiners. Should he afterwards be called to testify as a witness for the Government in the case, his salary for the period of absence would be chargeable to the same fund, and his expenses in going to, returning from, and in attendance upon court would be chargeable to the appropriation for fees of witnesses, United States courts (sec. 850, Rev. Stat.). The case of a national-bank examiner who is loaned to the Department of Justice to assist a United States attorney as an expert because of his general expert knowledge is different. It is no part of his official duty to render this expert service to the Department of Justice. He is loaned to the said department for its convenience and benefit, and the resultant expense is a just and proper charge against its appropriation if it has an available appropriation. If it has no available appropriation, no reimbursement can be made. (In this connection, see 22 Comp. Dec., 145, and cases cited therein.) Heretofore the general rule has been that the salary of the loaned employee shall not be included in the charge against the appropriation of the department for which the temporary service is rendered. This rule rests upon two reasons, namely: First, that specific provision for the salary having been made by or under a particular appropriation, such provision is exclusive of the use of any other appropriation for that purpose. This reason is sound, but it does not follow that, when payment of the salary shall have been made as provided, the appropriation of the department for which a service has been rendered may not be used to discharge a debt which the said department has thus incurred, nor that the appropriation of the other department may not be reimbursed to the extent to which it has been drawn upon to pay for services and expenses not within its terms or purposes. The second reason for the rule is that only the additional expense imposed upon the department making the loan should be reimbursed, and as the employee is entitled to, and would draw his salary in accordance with his employment in any event, the loan of his services. does not involve his department in any additional expense for his salary. It is true that, unless some one else is employed to do his work during his absence, no direct immediate loss of money would ensue, but the loss of his services must necessarily involve the loss of the value of those services, and there is no other measure of value than the salary paid to him during the loan period. We can not assume either that he would have remained idle if he had not been loaned or that the activities of his regular services will be curtailed because of his temporary absence. W、 must conclude that the performance of his regular duties is postponed until his return, and must therefore be thereafter performed in time, for which he will be regularly paid by his department. His service will be thus prolonged, and the loss of the value of his services during the loan period will ultimately fall upon his department. In case the salary has been specifically appropriated for, reimbursement can serve no useful purpose in so far as further use of the appropriation is concerned, but it serves to charge the other appropriation with a just and legal claim against it. In case of lump-sum appropriations reimbursement serves a double purpose of making the money available for other expenditure under the appropriation to be credited and charging the expense to the appropriation to which it is properly chargeable. I must hold, therefore, that when the expert services of a nationalbank examiner are ioaned by the Treasury Department to the Department of Justice upon due authority from the latter department, the examiner's salary and expenses are payable in the first instance by the Treasury Department from the fund provided for that purpose and under laws and regulations governing other like payments. Having so paid the said salary and expenses, the Treasury Department has a just and lawful claim against the Department of Justice for reimbursement of this fund to the extent to which it has been thus drawn upon. Reimbursement should be made from the appropriation "Miscellaneous expenses, United Sates courts." With reference to the specific case mentioned in the letter of the Comptroller of the Currency, the statement of facts is not sufficiently full or explicit to enable this office to determine finally the proper use of appropriations. What has been said will probably indicate the proper course in this case, but if any doubt remains it can be cleared by a further submission with all relevant facts. PAYMENT OF RENTAL OF INDIAN LANDS. Under existing law and regulations of the Interior Department made pursuant thereto, rentals due under leases of lands allotted to Indians that have not been declared competent by the Secretary of the Interior to manage their own affairs must be paid to the superintendent or other proper officer of the reservation to which the Indians belong, to be deposited to the credit of said Indians, although the leases may have been executed directly by the Indians. Acting Comptroller Foree to Maj. E. A. Greenough, Quartermaster Corps, United States Army, October 17, 1916: I have your letter of the 6th instant requesting decision as to the party to whom payment should be made of rentals accruing under two leases dated July 1, 1915, covering right of way for water-pipe line through parts of the Swinomish Indian Reservation, Wash. The leases in question, one with George Quiladt and wife, Louisa, and the other with Patrick, Ignatius, Mary Ann, and Jerry Willup, cover the right to construct and maintain a water-pipe line across lands allotted to them by the Government, the first at a rate of $40.25 for the year ended June 30, 1916, and the second at $50 for the same period. These leases were made by the parties named, all of whom are Indians, with the approval of the Interior Department, and, as above indicated, the land in question has been allotted to them, but they hold no final patents therefor. About the end of the fiscal year, as has been done in previous years, the quartermaster prepared vouchers covering the agreed rentals, made out in the names of the lessors, the Indians above mentioned, and sent them to the superintendent of the Tulalip Indian Agency having charge of the affairs of said Indians, with the request that he procure their signatures to the voucher preparatory to payment by him to the Indian lessors. The superintendent returned the vouchers unsigned, stating that inasmuch as the Indians in question had never been declared competent to transact business for themselves, payment on account of the rentals should be made to him direct as agent, and this contention has continued to be advanced in subsequent correspondence. The quartermaster declined to make payment as suggested, contending that inasmuch as the leases had been executed by the Indians in person, payment could properly be made only to them. The question now submitted is as to whether payment may properly be made to the Indians direct or whether it should be made to the superintendent for later disbursement by him in accordance with regulations of the Interior Department. The act of June 25, 1910 (36 Stat., 856), provides: "That any Indian allotment to any Indian held under a trust patent may be leased by the allottee for a period not to exceed five years, subject to and in conformity with such rules and regulations as the Secretary of the Interior may prescribe, and the proceeds of any such lease shall be paid to the allottee or his heirs, or expended for his or their benefit, in the discretion of the Secretary of the Interior." Under this and other similar acts the Secretary of the Interior has promulgated regulations governing the leasing of allotted Indian lands. The regulations approved July 1, 1916, among other things, provide: "Indians not deemed competent to manage their own affairs in this respect shall have their leases made in the office of the superintendent or other officer in charge, and such officer shall negotiate and approve such leases. It must be understood, however, that leases covering allotments to adults shall be made only with the consent of such adults unless the allottees are mentally incompetent. The superintendent or other officer in charge shall collect all rentals arising under leases negotiated by him, and where such rentals are payable in cash they shall be deposited to the credit of the lessors and paid out in accordance with the regulations in force regarding individual Indian moneys." The Indians here in question are incompetent; that is, they have not been declared competent to manage their own affairs by the Secretary of the Interior. The leases involved were executed by the Indians themselves, but apparently with the consent and approval and upon the advice of the superintendent acting for them. Under |