18, 1920, 41 Stat., 602, as amended by paragraph 1, section 4b. of the act of June 4, 1920, 41 Stat., 761, as it could by its terms only be computed on the base pay provided in that section and was confined to enlisted men of the first five grades as therein set forth. Neither the second leader nor any of the musicians were enlisted men that came within any of these five grades, their pay rates per month according to grade being $150, $125, $100, $87, and $70, while those of the first five grades to whom the 20 per cent was confined were at the lower monthly rates of $74, $53, $45, $45, and $37.

This fact was recognized in Marine Corps Orders, No. 18, June 25, 1920, approved by the Secretary of the Navy, when, after grouping men of the Marine Corps generally so as to correspond with men of the Army for the purpose of said first five grades, there was added:

The designations of enlisted grades of the Marine Band are fixed by law, which is not changed by the Army reorganization act. The designation of such grades continues the same as heretofore.

Members of the Marine Band are not affected by the said section of the Army reorganization act, and are therefore not included in the above classification.

This is in itself sufficient reason why the second leader and musicians are not entitled to said 20 per cent increase, there existing no provision for its payment for grades other than the five from which five grades they were excluded, and further is in effect a legislative and administrative recognition of the fact of the separation of the Marine Band for pay purposes from other men of the Marine Corps, and of the impossibility of a proper application to the musicians and their second leader by assimilation of statutes conferring general increases of pay on men of the Marine Corps or Army and a further enunciation of the statutory rule that the express mention of one is the exclusion of all others.

A further administrative recognition of the fact that said members of the band did not come within the operation of the general pay increase statutes for the Marine Corps or Army is the fact that the Secretary of the Navy urged that they come within a general increase statute for men of the Navy, stating at the time that he was in doubt as to their right to the general increase for men of the Army. See 1 Comp. Gen., 417.

The decision to the effect that neither the second leader nor musicians are entitled to said 20 per cent increase was undoubtedly correct and is adhered to.

As to good-conduct medal pay, neither the second leader nor musicians could possess any right to it unless they were for pay purposes enlisted men of the Marine Corps generally. As has been seen, they were not. They were professional musicians and pro

vided for separately as a band of musicians and paid for professional services as such a higher pay than enlisted men generally, independently of any additionals, for whom the good-conduct medal pay was deemed appropriate and authorized by annual appropriation acts beginning with that of April 27, 1904, 33 Stat., 347. See also Executive order of June 28, 1904, promulgated by Navy Department G. O. No. 164, dated July 22, 1904.

In other words, for pay purposes enlisted men of the Marine Corps are divided into two classes, one designated the band of the United States Marine Corps, for whom no express provision had been made for additionals of any character authorized for enlisted men of the Marine Corps generally, notwithstanding the opposite situation as to members of the Military Band from whom the Marine Band had been separated for pay purposes and for the Naval Academy Band and the other enlisted men of the Marine Corps.

The decision which conferred on them good-conduct medal pay was again the same one that construed the act of 1916, in accord with the preceding construction, which had been placed on the act of 1899 through a patent error in the application of the wording of that statute and which construction does not accord with the principle announced in existing judicial construction of legislation of this character or with the decisions of this office rendered prior to the one now under consideration. See Bristow v. United States, supra; 1 Comp. Gen., 317, 417.

The decision in 2 Comp. Gen., 25, is in harmony with said judicial construction and existing decisions of this office at the time it was rendered, to the effect that the musicians and their second leader of the Marine Band are not entitled to be paid for good-conduct medal, and is adhered to.

There was also requested decision upon the new question whether the second leader and musicians of the Marine Band are entitled on reenlistment after July 1, 1922, to an enlistment allowance.

The existing law of August 29, 1916, supra, provides that the second leader shall have the allowances of a sergeant major, and the musicians of the band the allowances of a sergeant. It is only necessary, therefore, to ascertaain what their allowances are.

A sergeant major is an enlisted man in the first grade and a sergeant is an enlisted man of the fourth grade, and each is respectively entitled to the enlistment allowance in the amount and under the conditions prescribed therefor.

I have to advise, therefore, that the provision in the act of June 10, 1922, providing for an enlistment allowance is applicable by

reason of the act of August 29, 1916, to the second leader and the musicians of the Marine Band.

RAILROAD CONTINGENT FUND-ACCOUNTING FOR, BY INTERSTATE COMMERCE COMMISSION.

The funds received from railroads as excess operating income under section 15a of the interstate commerce act, as amended by act of February 28, 1920, 41 Stat., 489. should be deposited in the Treasury to the credit of a special fund, subject to requisition for advancement and expenditure by the commission in the administration of the act, the customary accounting therefor to be made to the General Accounting Office.

Comptroller General McCarl to the chairman, Interstate Commerce Commission, November 29, 1922.

Under date of September 18, 1922, Commissioner B. H. Meyer wrote to this office inclosing a copy of an opinion rendered by the Attorney General to the President under date of September 9, 1922, to the effect generally that moneys paid to and received by the Interstate Commerce Commission as excess railway operating income under the provisions of section 15a of the transportation act of 1920, 41 Stat., 489, are not "public moneys" in the sense that they should be covered into the Treasury of the United States, but may be deposited by the commission, in its own name and subject to its draft, in banks or trust companies designated as Government depositaries, such deposits and disbursements to be accounted for to the General Accounting Office as provided by the acts of July 31, 1894, 28 Stat., 205, and June 10, 1921, 42 Stat., 20.

Commissioner Meyer also inclosed with his letter one copy each of the commission's orders of January 16 and March 16, 1922, in the matter of the recovery and payment of excess railway operating income under the statute aforementioned, and requests information as to the requirements of the General Accounting Office with respect to the audit of various transactions arising out of the administration of the fund.

I am unable to agree with the conclusion reached by the Attorney General that excess railway operating income received by the Interstate Commerce Commission under the statute cited is not public moneys required to be deposited in the Treasury, and as the matter is one involving expenditure of and accounting for funds coming officially into the hands of the commission it is one which the Comptroller General is required by law to decide.

The Attorney General's conclusion rests upon the premise that the Government of the United States possesses no beneficial interest whatever in these funds, which are to be held by the commission solely for the purposes prescribed by the statute. Assuming the

soundness of the premise the conclusion is nevertheless a non sequitur. Whether official funds are collected for the use and benefit of the United States, or for certain purposes and uses specified by statute, or to be held in trust for the benefit of specified persons or interests, they are required to be covered into the Treasury; to the general fund if for the use and benefit of the United States, to a special fund if they are to be applied to specific purposes and uses, or to a trust fund if for the use of specified persons or interests, 14 Comp. Dec., 361. See, also, Treasury Department Circular No. 56, July 14, 1908, defining the several accounts upon the books of the Treasury Department.

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Paragraph 5 of section 15a of the interstate commerce act as amended by the act of February 28, 1920, 41 Stat., 489, declares that any carrier receiving a net railway operating income in excess of a fair return as provided by the statute shall hold a specified part of such excess as trustee for, and shall pay it to, the United States." Paragraph (6) provides that the specified part of the net excess operating income shall "be recoverable by and paid to the commission for the purpose of establishing and maintaining a general railroad contingent fund as hereinafter described." Paragraph (10) of the section provides:

The general railroad contingent fund so to be recoverable by and paid to the Commission and all accretions thereof shall be a revolving fund and shall be administered by the Commission. It shall be used by the Commission in furtherance of the public interest in railway transportation either by making loans to carriers to meet expenditures for capital account or to refund maturing securities originally issued for capital account, or by purchasing transportation equipment and facilities and leasing the same to carriers, as herein. after provided. Any moneys in the fund not so employed shall be invested in obligations of the United States or deposited in authorized depositaries of the United States subject to the rules promulgated from time to time by the Secretary of the Treasury relating to Government deposits.

The provisions of law clearly and specifically divest the railroads of all right or title to or interest in the excess earnings required to be paid over to the commission and establish a special fund to be administered by the commission in the interest, not of the railroads themselves, but "in furtherance of the public interest in railway transportation."

A "special fund" on the books of the Treasury Department is defined by the syllabus of the comptroller's decision hereinbefore cited to be:

Where Congress authorizes moneys received from specified sources to be expended for specified objects such moneys constitute a special fund and should be covered into the Treasury as such.

The general railway contingent fund conforms clearly and precisely to this definition which is in accordance with law and estab

lished Treasury practice and usage. All receipts of the commission on account of this fund should be deposited in the Treasury to the credit of a special fund where it will be available to the commission upon its requisition for advancement and expenditure in the administration of the statute.

The status of a special fund in the Treasury should not be confused with what is known and designated as a "special deposit account" in which moneys not yet ready to be covered into the Treasury may be held temporarily subject to administrative check pending full and final vesting in the United States of title to them, or paying them to whom they belong. An instance of this is the class of cases in which the law provides for deposit of moneys with an official of the United States to secure payment for a service thereafter to be rendered in which case the amount deposited does not become money of the United States until the service has been rendered. The general railway contingent fund has none of the distinguishing characteristics of a special deposit account. See 19 Comp. Dec., 442; 20 id., 479.

I see nothing to distingush this railway contingent fund from other special funds in the Treasury. The covering of the funds into the Treasury to a special fund account will not unduly restrain the authority and discretion of the commission in the administration of the fund, which would still be subject to its requisition. The authority and jurisdiction of the Treasury Department over the fund would extend no further than to see that it is paid out or advanced upon legal settlements or requisitions in accordance with general laws and regulations governing such payments or advances, and the customary accounting to the General Accounting Office. There could be no interference by the Secretary of the Treasury with the discretion and authority of the commission in the administration of the fund.

The general purposes for which the fund is to be expended are the making of loans to railroads and the purchase of equipment and facilities for lease to carriers. There does not appear to be anything in the character or urgency of these purposes calling for special deposit account or for any other special procedure in depositing, disbursing, and accounting for the fund. On the other hand the covering of the moneys into the Treasury to the credit of a special fund will serve to make a record on the books of the Treasury of all receipts and withdrawals of funds.

As regards the accounting forms and procedure, if standard forms and procedure are thought to be inadequate, the commission may