at educational institutions. In some instances it was provided that the officer should receive full pay and allowances, while in other cases he was to receive no compensation in addition to his retired.

pay.

Section 23 of the act of July 15, 1870 (16 Stat., 320), reads:

"And be it further enacted, That any retired officer may, on his own application, be detailed to serve as professor in any college; but while so serving such officer shall be allowed no additional compensation."

This provision was carried into the Revised Statutes in section 1260. The act of May 4, 1880 (21 Stat., 113), provides:

"That upon the application of any college, university, or institution of learning incorporated under the laws of any State within the United States, having capacity at the same time to educate not less than one hundred and fifty male students, the President may detail an officer of the Army on the retired list to act as president, superintendent, or professor thereof; and such officer may receive from the institution to which he may be detailed the difference between his retired and full pay, and shall not receive any additional pay or allowance from the United States."

The act of May 21, 1904 (33 Stat., 225), provides:

"That section twelve hundred and twenty-five of the Revised Statutes, concerning the detail of officers of the Army and Navy to educational institutions, be, and the same is hereby, amended so as to permit the President to detail under the provisions of that Act, and in addition to the detail of the officers of the Army and Navy now authorized to be detailed under the existing provisions of said act, such retired officers and noncommissioned officers of the Army and Navy of the United States as in his judgment may be required for that purpose to act as instructors in military drill and tactics in schools in the United States and Territories where such instructions shall have been authorized by the educational authorities thereof, and where the services of such instructors shall have been applied for by said authorities.

"SEC. 2. That no detail shall be made under this act to any school unless it shall pay the cost of commutation of quarters of the retired officers or noncommissioned officers detailed thereto and the extraduty pay to which they may be entitled by law to receive for the performance of special duty: Provided, That no detail shall be made under the provisions of this act unless the officers and noncommissioned officers to be detailed are willing to accept such position: Provided further, That they shall receive no compensation from the Government other than their retired pay.

It will be observed that retired officers detailed to educational institutions under the above laws receive only their retired pay and such additional compensation or allowances as may be paid by the institution to which detailed.

Section 1225, Revised Statutes, as amended by the act of September 26, 1888 (25 Stat., 491), provides:

"The President may, upon the application of any established military institute, seminary or academy, college or university, within the United States having capacity to educate at the same time not less than one hundred and fifty male students, detail an officer of the Army or Navy to act as superintendent, or professor thereof;

This provision was originally enacted as section 26, act of July 28, 1866 (14 Stat., 336).

It is noted that this section refers to the detail of officers "of the Army," but it was never held to apply to retired officers until amended by the act of November 3, 1893 (28 Stat., 7), so as to provide that "officers on the retired list of the Army may upon their own application be detailed to such duty and when so detailed shall receive the full pay of their rank." This appears to have been the first law authorizing the payment of full pay to retired officers on duty at educational institutions, and it did not apply to or affect details under section 1260, Revised Statutes, or the act of May 4, 1880, supra. (See act of Aug. 6, 1894, 28 Stat., 235.)

This act of 1893 was amended by the act of March 3, 1909 (35 Stat., 738), so as to provide that retired officers when so detailed shall receive the full pay and allowances of their rank, except that lieutenant colonels and colonels when so detailed shall receive the pay and allowances of a major, and officers above the grade of colonel shall receive only their retired pay.

The next legislation on this subject was the act of June 3, 1916, section 45 of which (39 Stat., 192), provides:

"The President is hereby authorized to detail such numbers of officers of the Army, either active or retired, not above the grade of colonel, as may be necessary, for duty as professors and assistant professors of military science and tactics at institutions where one or more units of the Reserve Officers' Training Corps are maintained; but the total number of active officers so detailed at educational institutions shall not exceed three hundred, and no active officer shall be so detailed who has not had five years' commissioned service in the Army. In time of peace retired officers shall not be detailed under the provisions of this section without their consent. Retired officers below the grade of lieutenant colonel so detailed shall receive the full pay and allowances of their grade, and retired officers above the grade of major so detailed shall receive the same pay and allowances as a retired major would receive under a like detail. No detail of officers on the active list of the Regular Army under the provisions of this section shall extend for more than four years."

Section 46 of said act provides for the detail of enlisted men to such institutions.

From an examination of the various laws relative to the detail of officers to educational institutions it appears to have been the uniform practice of Congress, whenever it intended to provide.for the detail of retired officers, to designate them specifically and also to stipulate as to the pay they should receive. Section 56, supra. makes no specific reference to retired officers or to pay, and I am of the opinion that Congress did not intend by said section to grant any new authority for the detail of retired officers to educational institutions.

You are advised, therefore, that payment of full pay and allowances to retired officers detailed to institutions referred to in said section 56 is not authorized unless such details are made in accordance with the provisions of some other law providing in express terms for the detail of, and payment of full pay and allowances to, retired officers.

ARMS AND AMMUNITION FOR THE PROTECTION OF PUBLIC PROPERTY. Arms and ammunition needed by an executive department for the protection of public property should be obtained by the head of such department from the Secretary of War, pursuant to the act of March 3, 1879, and not by purchase from private dealers.

Decision by Comptroller Warwick, March 6, 1917:

The Auditor for the Treasury Department, by settlement No. 55410, dated February 23, 1917, allowed the claim of Schoverling, Daly & Gales for $66.56 on account of six revolvers and 150 cartridges furnished for the use of the guards at the United States subtreasury, New York.

It is presumed that these revolvers and cartridges were purchased for the protection of the public money and property.

The act of March 3, 1879 (20 Stat., 412), provides:

"That upon the request of the head of any department, the Secretary of War be, and he hereby is, authorized and directed to issue arms and ammunition whenever they may be required for the protection of the public money and property, and they may be delivered to any officer of the department designated by the head of such department, to be accounted for to the Secretary of War, and to be returned when the necessity for their use has expired.

* *

This provision authorizes and directs the Secretary of War to issue, at the request of the head of any department, arms and ammunition whenever they may be required for the protection of the public money and property. As Congress has thus made adequate provision for supplying the various departments with arms and ammunition to protect the public money and property, there would

appear to be no necessity for obtaining such arms and ammunition in any other manner. I am of opinion, therefore, that the above quoted provision is exclusive and precludes the head of any department from using the appropriations of his department for the purchase of arms and ammunition for the protection of the public money or property.

I find nothing in the papers in this case to indicate the existence of an emergency that would not admit of the delay incident to obtaining the desired arms and ammunition from the War Department. On the contrary, it appears that this purchase was in contemplation for more than a week before the articles were delivered and that no attempt was made to obtain them through the Secretary of War.

The auditor's action in allowing this claim is reversed.

BURIAL EXPENSES, NAVY.

The Navy Department is not authorized to defray the burial expenses of an enlisted man of the Navy who died while furloughed under the act of August 29, 1916.

Comptroller Warwick to the Secretary of the Navy, March 8, 1917:

I have your letter of February 17, 1917, as follows:

"Upon recommendation of the Surgeon General of the Navy your decision is requested as to whether this department has authority to defray the expenses of burial in case of death of an enlisted man while on furlough pursuant to the act of August 29, 1916 (39 Stat.. 580).

6

"In an opinion of the Judge Advocate General of the Navy, February 5, 1917 (copy inclosed), it was concluded that Enlisted men furloughed under the act of August 29, 1916 (39 Stat., 580), clearly retain their status as enlisted men during the period of such furlough.'

"This department has no doubt as to the correctness of the conclusion quoted, in connection with which the Surgeon General states: 'It would appear that if an enlisted man furloughed retains his status as an enlisted man during the period of furlough, the bureau could with propriety bear the expense incident to his death as care, transportation, and burial of the dead under the appropriation "Contingent, medicine, and surgery,' or could defray the expenses of transportation of remains under the appropriation Bringing home remains of officers, etc.""

66* * *

* **”

The provision referred to in the act of August 29, 1916, is as follows:

"The Secretary of the Navy is hereby authorized to grant furlough without pay to enlisted men for a period covering the unexpired portion of their enlistment: Provided, That such furlough be granted under the same conditions and in lieu of discharge by purchase or

by special order of the department. Enlisted men so furloughed shall be subject to recall in time of war or national emergency to complete the unexpired portion of their enlistment, and shall be in addition to the authorized number of enlisted men of the Navy."

66

* *

care,

The same act provides on pages 571 and 572, under the head of Contingent, Bureau of Medicine and Surgery," for "* transportation, and burial of the dead; "Transportation of remains" as follows:

*" and under

"To enable the Secretary of the Navy, in his discretion, to cause to be transferred to their homes the remains of officers and enlisted men of the Navy and Marine Corps who die or are killed in action ashore or afloat, * *

The provisions of the contract of enlistment of a man furloughed without pay under said act are suspended during the period of such furlough until and unless he is recalled as provided therein, that is to say, during the period of his absence under such furlough the man is relieved of all obligation to render any service under his enlistment, and the Government is also correspondingly relieved during the same period of its obligations to the enlisted man as such.

The man when furloughed is at liberty and is presumed to return to his home and engage in private pursuits.

The appropriations in question were intended to cover the expenses of burial and the transporation of the remains of the men who die while regularly serving in the Navy. An enlisted man who dies while on such furlough does not come within this class, and the Government is under no obligation either to defray his burial expenses or to transport his remains to his home if he should die while absent therefrom in pursuit of business or pleasure.

I have therefore to answer the question presented in the negative.

APPOINTMENT OF EMPLOYEES OF TEMPORARY COMMITTEE ON ACCOUNTS. HOUSE OF REPRESENTATIVES.

The chairman of the temporary committee on accounts, House of Representatives, appointed under authority of the act of March 2, 1895, is authorized, with the approval of the committee, to appoint and to discharge a clerk or other employees of said committee.

Comptroller Warwick to the Clerk of the House of Representatives, March 9, 1917:

I have your letter of the 7th inst. as follows:

"When the Congress adjourned 'sine die' on the 4th of March we had upon the roll of employees of the House of Representatives S. R. Lloyd, T. L. Lloyd, and Wm. Bray, as clerk, assistant clerk, and janitor, respectively, of the Committee on Accounts. These employees had taken the customary oath of office, prior to the adjournment of Congress, which oaths in writing are now on file in my office.