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judge of the court ordered these cars delivered to the marshal for storage at a reasonable rate and restriction of the use of them. It seems that in some instances the garage owners refused to deliver the cars to the marshal until accrued storage charges were paid or liability therefor was assumed by responsible authority. The marshal would not assume responsibility for the charges, which in the cases now in question were paid by the special disbursing agent from the prohibition enforcement appropriation.
Reimbursement of the appropriation for such payments from the proceeds of sale is now claimed under Title II, section 26 of the national prohibition act of October 28, 1919, 41 Stat., 315, which authorizes seizure of vehicles in which intoxicating liquor is being illegally transported and provides for their sale under order of court, and thatthe officer making the sale, after deducting the expenses of keeping the property, the fee for the seizure, and the cost of the sale, shall pay all liens, according to their priorities,
shall pay the balance of the proceeds into the Treasury of the United States as miscellaneous receipts.
The expense of keeping the property thus authorized to be deducted from the proceeds of sale does not include the expense of maintaining an automobile service for the Federal prohibition service or its agents. I find no authority of law for maintaining seized cars for the use of Federal prohibition agents out of proceeds of sale. Operating expenses of the Federal prohibition service are specifically appropriated for, and the appropriations made for that purpose may not lawfully be augmented or supplemented by the use of proceeds of the sale of seized cars.
Whether or not the payment of the expenses in the first instance from the prohibition enforcement appropriation was lawful is not for determination at this time on your submission. It is clear, however, that having been paid from the appropriation, there is no authority of law for reimbursing the appropriation from the proceeds of sale. This ruling applies only to automobiles held in so-called live storage for the use of the Federal prohibition service. The expense of keeping automobiles in dead storage where they are not available for official or private use rests upon a different footing.
The law contemplates that all necessary expense of storage shall be paid from the proceeds of sale and that the storage will be dead storage and the charge therefor will be such that the proceeds will be suflicient to meet it and other necessary expenses of keeping and selling the automobile. It also contemplates that storage shall be paid directly from the proceeds of sale. It should be an exceptional case of sale where it is necessary to resort to any appropriation for payment finally of storage or other charges or expenses. lf unduly kept in dead storage so as to raise the possibility of stor
age charges exceeding the value of the automobile, it would appear proper to submit the matter to the court for such order as the situation may require. Where it is necessary to advance from any appropriation, either of the judiciary or of the prohibition service, funds for payment of dead storage charges the appropriation may be reimbursed from the proceeds of the after sale of the automobile.
REFUND OF EXCESS PUBLIC-LAND PAYMENTS-LIMITATION ON
The two-year limit fixed by the act of December 11, 1919, 41 Stat., 366, within
which to file applications for refund of excess payments in connection with public-land entries is applicable to the various heirs or distributees of a deceased entryman individually, and the filing of an application by one heir or distributee within the time limit does not stop the running of the
statute as to the other heirs or distributees. Decision by Comptroller General McCarl, December 14, 1922:
The Chief, Interior Department Division, submitted October 25, 1922, a matter concerning section 2 of the act of December 11, 1919, limiting the time for filing applications for repayment of excess purchase money paid for land under the public-land laws to within two years after patent or within two years from passage of the act as to excess payments theretofore made.
The matter presented involves cash entry, Walla Walla, Wash., No. 1690 for the N. I SW. 4 sec. 6, T. 8 N., R. 37 E. Willamette meridian, containing 80.04 acres, entered by William M. Gerking, January 25, 1882, for which he was required to pay $2.50 per acre, or a total of $189, plus $11 fees credited as purchase money. The price paid was at the legal rate for land in the limits of the Northern Pacific Railroad Co. grant.
Under a decision of January 29, 1921, in case of Thomas Dorman, 47 L. D., 628, the Secretary of the Interior held that the grant, embracing within its limits this land, was forfeited for failure to construct the road and that all those who paid more than $1.25 per acre were entitled to refund of the excess.
October 12, 1921, within two years after date of act, Mrs. Mary Etta Gerking, widow of deceased entryman, filed application“ for the repayment of such amount of money as may be found due, paid in connection with” the above-described entry. January 30, 1922, after expiration of the two-year limit, two additional applications were filed by Velma B. Purcell and Alberta Gerking Walters, both daughters of the deceased entryman. There has been certified by the Secretary of the Interior as due Mary E. Gerking, widow, $50, Velma B. Purcell, daughter, $25, and Alberta G. Walters, $25. The Chief of the Interior Department Division decides as follows:
I am of the opinion and so decide that, in all claims of this character where appUcations for repayment are made by the heirs of a deceased entryman, the
application of each heir must be considered a separate and distinct claim for his or her share of the repayment and that only those shares can be repaid for which application has been filed within the prescribed time limit.
Section 2 of the act of March 26, 1908, 35 Stat., 48, provided : That in all cases where it shall appear to the satisfaction of the Secretary of the Interior that any person has heretofore or shall hereafter make any payments to the United States under the public-land laws in excess of the amount he was lawfully required to pay under such laws, such excess shall be repaid to such person or to his legal representatives.
Said section was amended by that of December 11, 1919, 41 Stat., 366, by adding thereto a proviso reading as follows:
That such person or his legal representatives shall file a request for the repayment of such excess within two years after the patent has issued for the land errhraced in such payment, or within two years from the passage of this Act as iv such excess payments as have heretofore been made.
The plain purpose of this proviso was to limit the time within which requests for repayment of the excess could be filed. Under the law the repayment can be made only upon the request of the person entitled to receive it and such request can be considered only when filed within the time stipulated in the statute.
If, upon the death of an entryman, the amount of the excess becomes payable to more than one person as distributees of his estate, payment is authorized to such distributees only as file a request therefor within the prescribed time.
In applying the time limitation fixed by the act of December 22, 1911, 37 Stat., 49, for filing claims for arrears of pay, bounty, or other allowances growing out of service during the Civil War, the Comptroller of the Treasury held that a claim filed by one heir within the required time did not prevent the running of the statute with respect to other heirs of the same soldier who failed to make application for their lawful share. 19 Comp. Dec., 413, 508.
Accordingly, in this case the three legal representatives, the widow and two daughters, each had a separate claim which could be entertained if filed on or before December 11, 1921. The widow having filed claim prior to that time, there is due her the sum of $50, but the two daughters having failed to file their claims within the required time the limitation in the statute operates to defeat their rights.
Decision of the Chief, Interior Department Division, is approved.
BURIAL EXPENSES-ENLISTED MEN OF ARMY DYING WHILE IN
CUSTODY OF CIVILIAN AUTHORITIES.
The expense of burial of an enlisted man of the Army dying while absent from
duty without leave and under arrest by the civil authorities is not payable from the appropriation made by the act of March 4, 1921, 41 Stat., 1388 for the burial expenses of enlisted men in active service
Decision by Comptroller General McCarl, December 14, 1922:
David B. Wooldridge requested October 27, 1922, review of settlement W-824112, dated May 20, 1922, disallowing his claim for $195 as reimbursement of the funeral expenses of Lee R. Wooldridge, formerly private, Field Artillery, who died November 22, 1921, while in confinement by the civilian authorities of the State of Illinois, and as a result of a self-inflicted gunshot wound in the head.
The soldier was last paid to include March 31, 1921, while stationed at Camp Jackson, S. C., where he continued to serve until April 18, 1921, when by Special Orders, No. 98, of that date, he was transferred to Camp Grant, Ill., and ordered to proceed to his new station at once. He never reported at Camp Grant; instead of proceeding by the shortest usually traveled route from Camp Jackson to Camp Grant in obedience to his orders, he proceeded to his home near Walpole, Ill. While there he killed his wife and shot himself in the head. His wound did not prove immediately fatal and he was taken into custody May 7, 1921, and was being held by the civilian authorities awaiting the action of the grand jury, when his death occurred November 22, 1921, as a result of the wound. He was carried on the military rolls from April 25, 1921, as absent without leave, and from May 7, 1921, as absent in confinement in the hands of civilian authorities. Claimant alleges that he expended $195 for the burial of the soldier and seeks reimbursement from the United States.
The act of March 4, 1921, 41 Stat., 1386, making appropriations for military activities for the fiscal year 1922, provided funds:
For Interment, cremation (only upon request from relatives of deceased), or of preparation and transportation to their homes or to such national cemeteries as may be designated by proper authority, in the discretion of the Secretary of War, of the remains of officers, cadets, United States Military Academy, including acting assistant surgeons and enlisted men in active service, and accepted applicants for enlist ment;
for the interment and shipment to their homes of remains of enlisted men who are discharged in hospitals in the United States and continue as inmates of sa id hospitals to the date of their death, and for interment of prisoners of war and interned alien enemies who die at prison camps in the United States; removal of remains from abandoned posts to permanent military posts or national cemeteries. including the remains of Federal soldiers, sailors, or marines interred in fields or abanıloned private and city cemeteries; and in any case where the expenses of burial or shipment of remains of officers or enlisted men of the Army who die on the active list are borne by individuals, where such expenses would have been lawful claims against the Government. reimbursement to such individuals may be made of the amount allowed by the Government for such services out of this sum,
The soldier was in custody of civilian authorities and for the time being withdrawn from military control, and during the period of his confinement he was in no better position for pay purposes than if he had voluntarily absented himself without leave from such con
trol. See 74 Article of War, 9 Comp. Dec., 249. As he died while in confinement in the hands of the civil authorities, he is entitled to the pay of his grade from the date last paid to April 24, 1921, of $24, less an indebtedness of $2 to the camp tailor. Paragraph 279, Army Regulations. The net amount of $22 is certified due claimant because of having paid the funeral expenses.
The appropriation act for the disposition of the remains of officers, enlisted men and civilian employees of the Army provided funds for the burial of those who died on active service. The soldier died as a result of a self-inflicted wound while withdrawn by his own conduct from active service. The funds providing for the burial of enlisted men who died while on active service are unavailable for the reim. bursement claimed. See 6 Comp. Dec., 343; id., 794, compare 1 Comp. Gen., 105.
CHANGE OF NOTARIAL SEAL ON CHANGE OF NOTARY PUBLIC
LIBRARY OF CONGRESS.
The appointment of an employee of the Library of Congress as potary public
for library purposes does not preclude him from performing notarial acts for private persons and the expenses of changing the die of the notąrial
seal so as to bear his name is not payable from Library funds. Comptroller General McCarl to Harriet de K. Woods, disbursing clerk,
Library of Congress, December 15, 1922:
I have your letter of November 22, 1922, requesting decision of a question presented by the chief clerk of the Library of Congress, as follows:
It is requested that the Comptroller be asked if there is any provision of law wbich prevents the Library of Congress from paying from the Library funds for having the die of its notarial seal changed so as to bear the name of the assistant appointed notary public for Library purposes.
It is noted that the voucher submitted with your letter is incomplete, since no certificate by the payee appears either on the voucher or the bill. A disbursing officer is entitled to an advance decision only on a voucher which is in proper form for payment. See 25 Comp. Dec. 653.
The fact that the assistant appointed notary public is not permitted to charge fees for oaths administered at the Library does not preclude him from performing notarial acts for private persons. Payment from Library funds for having the die of the notarial seal changed could not be held to be for use of the Library. See 12 Comp. Dec. 484, 19 id. 242. The question submitted is answered in the negative.
PURCHASES—APRONS FOR LABORATORY WORK. Duck aprons for general laboratory use in scientific research work at the
Geological Survey are not such personal furnishings as are precluded from being purchased from Government funds without specific authority from Congress. 2 Comp. Gen., 258, distinguished.