MOUNTED PAY, METROPOLITAN POLICE FORCE.

Officers of the Metropolitan police force, who are mounted on horses, motor vehicles or bicycles, are not entitled to receive the additional pay provided for mounted officers for any period during which they are on leave without pay, as said mounted pay is in effect an increase in the salary or compensation of the mounted officers.

Comptroller Warwick to the Auditor for the State and Other Departments, February 28, 1917:

You have submitted for approval, disapproval, or modification your decision of February 21, 1917, to the effect that the mounted pay at the rate of $240 per annum provided for officers of the Metropolitan police force mounted on horses or motor vehicles is not payable for any period during which the officer is absent on leave without pay.

The act of September 1, 1916 (39 Stat., 700), appropriates for salaries of the various grades in the force at specific rates per annum, and in addition thereto provides for

inspector, mounted on horse or motor vehicle, $240; fiftyfive captains, lieutenants, sergeants, and privates, mounted on horses or for motor vehicle allowances, at $240 each; sixty-four lieutenants, sergeants, and privates, mounted on bicycles, at $50 each."

The reasons assigned by you for your conclusion are as follows:

66

* *

The mounted pay, like all commutations, may be thought of as primarily a reimbursement. (Odell v. U. S., 38 Ct. Cls., 194.) In granting the allowance the Government proposes to reimburse the officer the cost of maintaining the mount during official use. The allowance in my view is made in contemplation of service and runs with service, either active or the constructive service involved in the leave of absence granted by law. To hold otherwise is to assume on the part of Congress a benevolent purpose, in searching for the basis of which we are at once embarrassed by a conflict of equities and by practical circumstances of divergent influence. For instance, if the occasion for leave without pay arises through the officer's fault or for his personal convenience, as must be often the case, the injustice of charging the District with the maintenance of mount in the meantime is apparent. If the leave is occasioned by the officer's misfortune-for instance, by his sicknessit may still well be held that in its provision of annual and sick leave Congress has marked out the limits of its proposed benefits in such cases and that an extension can not be assumed without express provision. Again, while in the case of horses some expense accrues to the officer irrespective of active use, the motor vehiclesmotorcycles or automobiles-would in the average case occasion diminished expense or none at all when disused. Yet it can hardly be thought that the accounting or administrative officers could discriminate as to the allowance between its application for horses and for motor vehicles.

"Adopting another viewpoint: I can see no argument in this case based on hardship, equity, or benevolent purpose which would

not as well apply to allowances for rations granted in many services, e. g., the Lighthouse Service, Coast and Geodetic Survey, Coast Guard Service. It is my understanding (and in some cases my actual information) that in these services the ration allowance is discontinued for periods of leave without pay. Yet, assuming that hardship is a governing consideration, it is quite as possible to urge the hardship suffered by a lighthouse keeper deprived of his rations during a nonpay period due to sickness as it is to plead similarly in behalf of a District police officer with respect to his mounted paywith this difference, that the expense commuted would be greater and would be more certainly incurred in the former case than in the latter."

I think the effect of the provisions of the law with respect to mounted pay is to increase the rate of salary or compensation of mounted officers over and above that prescribed for unmounted officers to the extent of $240 per annum or $50 per annum, as the case may be, and that the increased salary or compensation is to be paid in like manner and is subject to the same restrictions with respect to absence as is the salary or compensation of unmounted officers.

Your decision appears to be correct, and is approved.

COMPENSATION FROM LUMP-SUM APPROPRIATIONS, PRESIDENTIAL

APPOINTEES.

The act of August 26, 1912, as amended by the act of March 4, 1913, providing that no person employed at a specified salary shall thereafter be transferred and paid from a lump-sum appropriation a rate of compensation greater than such specified salary, has no application to officers appointed by the President, and such an officer may resign his office and accept appointment under a lump-sum appropriation provided that the compensation attached to such employment is not greater than that paid by the same department or establishment for the same or similar service during the preceding year.

Comptroller Warwick to the Attorney General, March 1, 1917:

I have your letter of February 28, 1917, as follows: "There are pending in the United States District Courts for the Districts of Oklahoma certain suits known as the River Bed cases, which were instituted by the United States on behalf of the Creek Tribe of Indians in the eastern district of Oklahoma and on behalf of the Osage Tribe in the western district of Oklahoma, to quiet the title of both tribes to the bed of the Arkansas River where it flows through the Creek country and where it bounds the Osage country, and of the Creek Indians to the bed of the Cimarron River in the Creek country. These cases are such as to require their conduct by a special assistant attorney, and they have been in charge of a special assistant for the past two years.

"In the eastern district of Oklahoma there are pending three or four suits instituted by the United States on behalf of the Creek Tribe to cancel certain allotments, which are under the supervision of the United States district attorney for the eastern district.

6110°--VOL. 23-17-32

The

nature of these cases is such that they probably will have to be placed in charge of a special assistant attorney in the near future, as the general duties of the district attorney may not permit him to give them the constant attention which their importance demands.

"It is urgently necessary that a successor to the special assistant attorney now in charge of the River Bed cases be appointed, and it is proposed, on resignation from his present position, to appoint the United States district attorney of the eastern district to the position of such special assistant attorney with compensation commensurate with the special services required of him, which will be somewhat greater than his present compensation as district attorney. These cases, as stated, have been in charge of a special assistant attorney, and two of them are in another district. Later, when it shall have been determined that the other cases in the eastern district, mentioned above, and which are now under the supervision of the district attorney, should have the attention of a special assistant attorney, it is desired to assign those cases to him in his new position without any further increase of compensation.

"It has been suggested that possibly the above-mentioned appointment at increased compensation and the assignment of cases, especially those which are now under the supervision of the district attorney, could not be made in view of the provisions of section 7 of the act of August 26, 1912 (37 Stat., 626), as amended by section 4 of the act of March 4, 1913 (37 Stat., 790), and I therefore respectfully request your decision as whether in your opinion the appointment may be made and cases assigned as proposed herein."

The statute to which you refer provides that no person employed at a specific salary shall be thereafter transferred and paid from a lump-sum appropriation a rate of compensation greater than such specific salary.

The salary of the United States attorney for the eastern district of Oklahoma is specifically fixed by law. Appointments to the office are made by the President by and with the advice and consent of the Senate. Section 363, Revised Statutes, authorizes the Attorney General to employ and retain attorneys and counselors to assist the district attorneys in the discharge of their duties and to stipulate with them the amount of their compensation.

The statute regulating transfers from specific salaries to salaries or compensation from lump-sum appropriations applies to such positions or employments as admit of transfer by executive action. It does not apply to presidential offices of this character, and does not prevent a person holding such an office from resigning it and accepting employment under a lump-sum appropriation, provided that the compensation to be paid to him does not exceed that paid for the same or similar services during the preceding fiscal year.

If, in your judgment, it is advisable and proper to employ the United States attorney as a special assistant attorney after he shall have given up his office of United States attorney, I see no legal objection to such employment.

SERVICES RENDERED BY ONE EXECUTIVE DEPARTMENT FOR ANOTHER. While, in general, where the agencies of one executive department of the Government render services to another such department and for its particular benefit, reimbursement of the department rendering the services should be made, yet where such services were performed in an emergency, for the protection of Government property and hence for the common good of the Government rather than for the benefit of the particular department aided, no such reimbursement should be made.

Comptroller Warwick to S. R. Jacobs, Disbursing Clerk, Treasury Department, March 3, 1917:

I have your letter of February 27, 1917, submitting a voucher for $179.96 of the Chief of Engineers, War Department, for services rendered by the dredge Charleston, to the Public Health Service in salvaging one of its barges in November, 1916, at Mobile quarantine station, as to which you have a doubt whether all the items of expense are properly chargeable.

The barge is stated to have been wrecked in a gale, and if allowed to remain in the position where she lay on the bottom and go to pieces, there was danger of injury to the station buildings. It is understood that the service rendered was in pumping out the barge and placing her in a protected position.

The service is itemized as pay and subsistence of dredge crew, two days, $118.70; 53 tons of coal, $12.43; oil, $1.33; two wrenches lost $1.50; and depreciation of dredge 2/30 of 1 per cent of $69,000 (original cost), $46; total, $179.96.

It is established that where the agencies of one department furnish supplies or render services to the agencies of another department payment should be made therefor. This rests on the theory that each department is appropriated for to obtain its own supplies and services in the performance of the purposes for which it was established, and is not to obtain them at the expense of the appropriations of the other department.

Supplies or services so furnished by the one to the other are ordinarily as a matter of accommodation rather than of the right to demand them. But where emergency calls for the department's action for the other, such as spontaneous action in protection of Government property in jeopardy, I conceive that there is a right to expect that action if not a right to demand it, and there would probably also be duty to render the assistance.

The action is for the common good of the Government rather than to the special advantage of the department assisted. Under such circumstances payment is not a natural condition upon the action. as it is where it has a connection with the other department performing the purposes for which it was established.

The service in the present case does not seem to have been merely a raising of the barge, as to which payment might not be ques

tioned, but it was the danger to the quarantine station buildings that seems to have called for assistance.

I may add, merely to show the conditions, and not as having any direct influence upon the question of payment, that private tugs also lent assistance but have not asked for payment.

I am accordingly constrained to say that in the present case there was not a performing of service which involves a payment to be made therefor from the appropriation of the one to the appropriation of the other, and you are not authorized to make the payment. This conclusion renders unnecessary considering the propriety of certain items having to do with the cost of the service rendered.

RETIRED ARMY OFFICERS ON DUTY IN EDUCATIONAL INSTITUTIONS. Retired officers of the Army detailed to duty in educational institutions of the class specified in section 56 of the act of June 3, 1916, are not entitled to full pay and allowances unless such details are made in accordance with the provisions of some other law providing for such details of such officers with full pay and allowances.

Comptroller Warwick to the Secretary of War, March 3, 1917:

I have your letter of the 20th ultimo requesting decision as to whether a retired officer detailed to service at a school or college under the provisions of section 56 of the act of June 3, 1916 (39 Stat., 197), is entitled to full pay and allowances.

The section in question provides for supplying military equipment to schools and colleges other than those provided for in section 47 of the act, having a course of military training prescribed by the Secretary of War and having not less than 100 physically fit male students above the age of 14 years, and contains a further provision as follows:

66 * *, and the Secretary of War is hereby authorized to detail such commissioned and noncommissioned officers of the Army to said schools and colleges, other than those provided for in section forty-five and forty-six of this act, detailing not less than one such officer or noncommissioned officer to each five hundred students under military instruction."

The first point for consideration in connection with the question submitted is whether the term "commissioned and noncommissioned officers of the Army," as used in this section, includes retired officers.

In its broad sense, the Army of the United States does include officers and enlisted men on the retired list. (See sections 1 and 2 of the act of June 3, 1916, 39 Stat., 166.) But was the word " Army," as used in the above-quoted provision, intended in that broad sense? At the time this law was enacted several different provisions of law were in force relative to the detail of retired officers to duty