ing on duty away from his designated post of duty; and the effect of this law is, of course, to prohibit the payment of subsistence ex penses incurred by an officer or employee of the United States at his designated post of duty or headquarters.

The law above mentioned is mandatory and makes no provision whatever for exceptions from its operation on account of emergencies, or otherwise.

In the present case, however, the proposed payment is not to be made to the employees themselves, as prohibited in the law cited, but to the hotel which has furnished the subsistence, presumably in good faith.

It is not specifically shown in your submission or the accompanying papers whether the hotel furnished the meals to the Immigration Service employees merely at the request of, and on the credit of, the employees themselves, or under a contract made with the commissioner of immigration or other competent officer providing that the meals were to be furnished at the expense of the Government.

If the subsistence in question was furnished solely on the order and credit of the employees themselves, the hotel can look only to such employees for payment, the Government under the circumstances not being a party to the transaction. If, on the other hand, the meals in question were furnished by the hotel under a contract providing for payment therefor by the Government, a different question is presented.

While it is true that all persons furnishing subsistence to Government officers or employees in the United States are chargeable with knowledge of the limitations contained in the act of April 6, 1914; yet it is manifestly impracticable, and not in the interest of the United States, to require that, in advance of supplying subsistence requested to be furnished at once, on behalf of the Government, by an officer of the Government prima facie authorized to make such a request, a hotel proprietor who, having the status of an innkeeper, is bound to serve all apparently proper persons requesting his services, shall ascertain whether the facts, with respect to the employment of the persons for whom the subsistence is requested, are such as to bring the furnishing of such subsistence within the prohibition of the act in question.

It would appear that in any such case the Government should pay the hotel for the subsistence so furnished, and that if there has been a violation of the act of April 6, 1914, the proper steps should then be taken to charge the amount of the payment to the responsible officer or employee of the Government. For a discussion of the principle here involved see 23 Comp. Dec., 90, and cases therein cited.

As before stated, it is not shown in four submission whether or not the meals were furnished in this case under a contract entered into in the name of the United States, and if such specific evidence is not in your possession, it is suggested that you decline payment of the voucher and forward the same with all relevant papers to the Auditor for the State and Other departments, who will develop the necessary evidence and make direct settlement of the claim.

If the hotel company is dissatisfied with the action taken by the auditor on the claim it will then have the right to appeal therefrom to this office under, and subject to the conditions of, the act of July 31, 1894 (28 Stat., 208), at any time within one year from the date of the auditor's action.

REFUNDING TAX ON PRODUCTS OR MERCHANDISE UNDER ACT OF OCTOBER 22, 1914.

There is no authority of law for the refunding of taxes collected under the act of October 22, 1914, on sales of grain at "any exchange, board of trade, or similar place," where the grain was to be delivered within 30 days but was neither loaded nor in transit at the time when the sale or agreement to sell was made.

Decision by Comptroller Warwick, May 4, 1917:

The Auditor for the Treasury Department submitted for approval, disapproval, or modification his decision, dated April 9, 1917, to the effect that there is no authority of law for refunding taxes collected under the provisions of the act of October 22, 1914 (38 Stat., 760), on sales of grain in the cash pit of the Chicago Board of Trade, where the grain was to be delivered within 30 days but was neither loaded nor in transit at the time the sale or agreement to sell was made.

The act in question provides that there shall be levied, collected, and paid taxes as follows:

"Upon each sale, agreement of sale, or agreement to sell, any products or merchandise at any exchange, or board of trade, or other similar place, either for present or future delivery, for each $100 in value of said sale or agreement of sale or agreement to sell, 1 cent, and for each additional $100 or fractional part thereof in excess of $100, 1 cent: Provided, That on every sale or agreement of sale or agreement to sell as aforesaid there shall be made and delivered by the seller to the buyer a bill, memorandum, agreement, or other evidence of such sale, agreement of sale, or agreement to sell, to which there shall be affixed a lawful stamp or stamps in value equal to the amount of the tax on such sale. And every such bill, memorandum, or other evidence of sale or agreement to sell shall show the date thereof, the name of the seller, the amount of the sale, and the matter or thing to which it refers; and any person or persons liable to pay the tax as herein provided, or anyone who acts in the matter as agent or broker for such person or per

sons, who shall make any such sale or agreement of sale, or agreement to sell, or who shall, in pursuance of any such sale, agreement of sale, or agreement to sell, deliver any such products or merchandise without a bill, memorandum, or other evidence thereof as herein required, or who shall deliver such bill, memorandum, or other evidence of sale, or agreement to sell, without having the proper stamps affixed thereto, with intent to evade the foregoing provisions, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not exceeding $1,000, or be imprisoned not more than six months, or both, at the descretion of the court. "That no bill, memorandum, agreement, or other evidence of such sale, or agreement of sale, or agreement to sell, in case of products or merchandise actually delivered at the time of sale or while in vessel, boat, or car, and actually in course of transportation, shall be subject to this tax, provided such bill, memorandum, agreement, or other evidence of such sale, or agreement of sale, or agreement to sell shall be accompanied by bills of lading or vouchers showing that the said products are actually in course of transportation as aforesaid." The claim before the auditor and upon which his construction of the statute is based is made by the claimant in the following language:

"Tax was paid by J. H. Dole & Company on all grain sold to arrive except that sold In Transit' or loaded. Under a recent ruling of the United States Internal Revenue Department all grain sold for shipment within thirty days is not subject to tax and the refund of Fifty Five and 26/100 Dollars is therefore asked."

The Commissioner of Internal Revenue issued a certificate, dated March 19, 1917, in the following words:

"In re the claim of J. H. Dole & Company, Chicago, Illinois, for the refunding of $55.26, stamp tax on memoranda of sales under schedule A under the Act of October 22, 1914.

"On December 4, 1916, claimant paid the collector $62.05, stamp tax on sales, etc. The tax paid to the extent of the amount claimed was upon sales made to arrive in thirty days, and under the ruling of this office it is not considered advisable to tax memoranda of sales of grain made in cash pit of the Chicago Board of Trade, where delivery is to be made within thirty days. The tax claimed is, therefore, refundable.

"Receipt Form 1 accompanies the claim filed January 18, 1917. "The claim is hereby allowed for $55.26 under Section 3220 R. S." "Form No. 1," referred to in the Commissioner's certificate, is the receipt of the collector of internal revenue of the first district of Illinois, dated December 4, 1916, to J. H. Dole & Company for $62.05, for "St. tax on sales."

It is observed that the above-quoted law provides for the tax on sales, agreements of sale, or agreements to sell, either for present or future delivery, and authorizes an exemption from such tax only

in case the subject matter of the sale is actually delivered at the time of sale or is in vessel, boat, or car, and actually in course of transportation.

If this law had provided for a tax on all sales, except in case of sales for immediate delivery, there might be some occasion for judgment as to what would constitute immediate delivery. But the law as enacted leaves no room for construction or for the exercise of judgment or discretion in the matter. The provision as to exemption is specific and in plain terms. Unless the subject matter of the sale is actually delivered or actually in course of transportation at the time of sale, the law imposes the tax. And when it is paid into the Treasury there is no authority to pay it out. The auditor's decision to this effect is approved.

ACCOUNTING-DISBURSEMENTS FROM GENERAL BALANCES, ENGINEER DEPARTMENT, ARMY.

Where, under the authority of the act of March 3, 1911, and subject to the conditions thereof, a disbursing officer of the Engineer Department of the Army makes a disbursement from the general balance to his official credit because of a lack of funds in his hands under the appropriation properly chargeable with the expenditure involved, such transaction may be shown on his account current by indicating a minus, or negative, balance under the appropriation chargeable, instead of by loan entries, such balance to be eliminated upon the next advance of funds to his official credit under that appropriation.

Comptroller Warwick to the Secretary of War, May 5, 1917:

By your authority, the Chief of Engineers, U. S. Army, requested, March 19, 1917, a reconsideration of the decision of this office of March 21, 1912 (18 Comp. Dec., 716), wherein it was held, quoting the syllabus, that:

"The provision in the act of March 3, 1911 (36 Stat., 1056), that 'when such disbursements are made the accounts of the disbursing officer shall show the charging of the proper appropriations, the balances under which will be adjusted by the disbursing officer on receipt of funds or by the accounting officers of the Treasury,' contemplates the temporary use of funds from other appropriations and means that when disbursements of the funds so used are made the accounts of the disbursing officer shall show the charging of the amount so used against the appropriation or appropriations from which taken; also that on receipt of money under the appropriation from which the disbursements should have been made the disbursing officer shall credit the appropriation or appropriations from which the money used in making the disbursements was taken."

The letter of the Chief of Engineers reads, in part, as follows: "2. Since the decision referred to was rendered, the form of Account Current was changed by the Comptroller (May 24, 1915), which, in effect, transposed the debits and credits, and made the form of loan entries prescribed by the Auditor somewhat confusing. Further, it is understood that since the decision was rendered, the Auditor's form of audit statement has been changed, and that certain contentions previously made as to the proper method of accounting for loans on the Account Current are no longer pertinent as affecting the audit statement.

"3. When the question was first under discussion, this office urged that no loan entries be required on the Account Current, but that disbursements under any appropriation in excess of the amount in the hands of the disbursing officer under such appropriation be indicated by a minus or negative balance. (See sample Account Current herewith.) Thus, the actual balance of any appropriation in the hands of an officer is apparent at a glance, without any calculation on account of unpaid loans, and any minus balance would automatically disappear as soon as funds were advanced to cover same.

"4. Owing to efforts to keep the balance in the hands of disbursing officers at lower figures, in compliance with requests of the Treasury Department, the number of loan transactions are increasing, which necessarily increases the amount of labor involved in checking them, and the limited space on the Account Current is frequently overcrowded by reason of these entries. Further, the balance shown by the face of the account under any appropriation affected by an outstanding loan is always a fictitious one, and to avoid risk of reporting an erroneous balance when referring to an Account Current to ascertain the unexpended balance of an appropriation, it was found. necessary to attach loan slips to all Accounts Current having outstanding loans. All this work would be unnecessary if the method recommended be authorized.

"5. It is, therefore, urgently requested that this question be reconsidered, and if there is now no good reason why the present method of showing such loans should be continued, that the method indicated in the sample Account Current herewith be authorized. If it be held that it would be necessary for the Auditor to suspend credit to a disbursing officer for disbursements under any appropriation in excess of the funds in hand thereunder, no objection is seen to such action, as the suspension would automatically disappear in the next settlement, after advances to cover had been made. Apparently no transfers of funds in the Treasury to adjust minus balances would be necessary except in case of death of an officer when carrying minus balances."

The act of March 3, 1911 (36 Stat., 1056) provides:

"Hereafter whenever pressing obligations are required to be paid by a disbursing officer of the Engineer Department and there is an insufficient balance to his official credit under the proper appropriation or appropriations for the purpose, he is authorized to make payment from the total available balance to his official credit, provided