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completion of a suitable sarcophagus, or tomb, the appropriation made available for the burial of said soldier, under the joint resolution of October 21, 1921, 41 Stat., 207, was exclusive, and no other appropriation or fund may be used for che erection of said monument or a model thereof; if not necessary to the completion of the sarcophagus or tomb no appro priation is available therefor in the absence of specific authorization by
Congress. Comptroller General McCarl to the Secretary of War, December 20, 1922:
By letter dated December 1, 1922, received in this office December 7, 1922, decision is requested whether the appropriation for maintaining and improving national cemeteries may be expended for the erection of a full-size model of a monument in completion of the tomb of the unknown American soldier in Arlington National Cemetery.
You state that the erection of a full-size model is desired for the purpose of making a study of the subject in order to determine the suitability of the design and whether it would be in harmony with the Memorial Amphitheater itself.
You state also that the tomb of the unknown American now pre sents an incomplete appearance and that “the object is to erect the proposed model in consummation of the purpose had in view when the remains of the unknown soldier were authorized by Congress to be returned and buried there."
The appropriation sought to be used is in the following terms:
For maintaining and improving national cemeteries, including fuel for superIntendents, pay of laborers and other employees, purchase of tools and ma. terials, and including care and maintenance of the Arlington Memorial Amphi. theatre and Chapel and grounds in the Arlington National Cemetery, Virginia, $134,798. Act of June 30, 1922, 42 Stat. 756.
The joint resolution of March 4, 1921, 41 Stat., 1447, authorized the Secretary of War to cause to be brought to the United States “ for burial in the Memorial Amphitheatre of the national cemetery at Arlington ” the body of an unknown American soldier who lost his life in Europe during the World War, and funds for that purpose were provided by joint resolution of October 21, 1921, 42 Status 207, in terms as follows:
That the Secretary of War Is hereby authorized to use such portion of the unexpended balance of the appropriation “ Disposition of remains of officers. Boldiers, and civilian employees, 1922” (Act of March 4, 1921, Public, numbered 389, Sixty-sixth Congress), as may be necessary for the carrying out of the provisions of public resolution numbered 67. Sixty-sixth Congress, entitled “ Joint resolution providing for bringing to the United States the body of an unknown American who was a member of the American Expeditionary Forces, who served in Europe and lost his life during the World War, and for burial of the remains with appropriate ceremonies "; and he is further authorized to expend from the said appropriation such sums as may be necessary to defray all expenses incident to the ceremonies connected with the burial of this un. known American, expense of transporting troops, individual officers, warrant officers, enlisted men, and sailors of the Regular Army, Navy, and Marine Corps to and from Washington: Provided, That the amount to be used for the es. penses incident to ceremonies connected with such burial shall not exceed $50.000,
This joint resolution made the unexpended balance of the appropriation “Disposing of Remains of Officers, Soldiers and Civilian Employees, 1922," available for the necessary expenses incident to the burial of the remains of the unknown soldier in the Memorial Amphitheater of the national cemetery at Arlington and for the ceremonies connected therewith. Expenses of burial as contemplated in said joint resolution would include the expense of providing a suitable sarcophagus or tomb as a receptacle for the remains.
Therefore if the proposed monument, the model of which is now under consideration, is necessary to the completion of a suitable sarcophagus or tomb then the appropriation made available by the joint resolution of October 21, 1921, was exclusive and no other appropriation or fund may be used for that purpose. If the proposed monument can not be regarded as a necessary part of the sarcophagus or tomb then it must be held to be a structure which should not be erected unless specifically authorized by law. The regular annual appropriation for the maintenance and improvement of national cemeteries is not available for the erection of such a monument or a model thereof.
The question submitted is answered in the negative.
DISTRIBUTION OF ANNUITY TO PAWNEE INDIANS OF OKLAHOMA. The final roll of the Pawnee Indians of Oklahoma, prepared by the Secretary of
the Interior and approved September 2, 1921, for the purposes of segre. gating tribal or common or community funds, is not a proper basis for the distribution of the $30,000 annuity provided for in the ratified agreement of November 23, 1892, and by annual appropriations for such annuities
made pursuant thereto. Comptroller General McCarl to the Secretary of the Interior, December 20, 1922:
I have your letter of November 27, 1922, transmitting a letter from the Commissioner of Indian Affairs and requesting a decision as to matters therein submitted relative to the proper basis for distributing the $30,000 appropriated in the act of May 24, 1922, 42 Stat., 574, "For fulfilling treaties with Pawnees, Oklahoma: For perpetual annuity, to be paid in cash to the Pawnees (article 3, agreement of November 23, 1892)."
The facts appear that article 2 of a treaty of September 24, 1857, 11 Stat., 729, provided an annuity of $40,000 for five years from January 1, 1858, and $30,000 annually thereafter, at least one-half thereof to be paid in other than coin; that this provision of law was amended by the act of March 3, 1893, 27 Stat., 644, ratifying an agreement of November 23, 1892, article 3 of which provided that: "The United States agrees to pay to the Pawnees the sum of thirty thousand dollars per annum, as a perpetual annuity, to be distributed
annually among them per capita, in coin;" that by the act of March 1, 1921, 41 Stat., 1172, the sum of $312,811.27, with interest at 5 per cent from September 3, 1920, was appropriated to pay the Pawnee tribe of Indians of Oklahoma for certain lands, etc., pursuant to the findings of the Court of Claims of December 6, 1920, etc.; that by the terms of the act of June 30, 1919, 41 Stat., 9, the Secretary of the Interior was authorized, in his discretion, to cause a final' roll to be made of the membership of any tribe, such rolls when approved by the said Secretary being declared to constitute the legal membership of the respective tribes for the purpose of segregating the tribal funds as provided in section 28 of the act of May 25, 1918, 40 Stat., 591; and that on September 2, 1921, a final roll of the Pawnee Indians, for the purpose of distributing the amount appropriated on the basis of the findings of the Court of Claims, was approved, the roll having been closed out as of March 1, 1921.
The substance of the matter for decision is whether this final roll of the Pawnee Indians, approved September 2, 1921, may legally be used as the basis for the distribution of the $30,000 annuity provided by the agreement of November 23, 1892, and appropriated for annually, or whether the Indians living on the date of the authority for the semiannual distribution of annuity are to be participants, which they would not be if the final roll of September 2, 1921, were used.
Amounts appropriated for per capita annuity distributions appear not to be “tribal funds,” or “common or community funds of any Indian tribe, which are, or hereafter may be, held in trust by the United States," within the intent and meaning of section 28 of the act of May 25, 1918, 40 Stat., 591, and the provisions of the act of June 30, 1919, 41 Stat., 9. The provisions of these respective acts, taken together, are that such final rolls shall constitute the legal membership of the respective tribes for the purpose of segregating the tribal, or common, or community funds of any Indian tribe. The stipulation of the agreement of November 23, 1892, article 3, ratified by the act of March 3, 1893, 27th Stat., 644, is for payment to the Pawnees of the sum of $30,000 per annum, as a perpetual annuity, to be distributed annually among them per capita, etc. The term “per capita” is defined (Bouvier's Law Dictionary, Rawle's Third Edition) as " by the head or polls.” It would thus appear that a distribution of the appropriated annuity on the basis of the final roll, closed on March 1, 1921, and approved on September 2, 1921, eliminating, as it would, those Indians born subsequent thereto would not be a per capita distribution as provided by the ratified agreement of November 23, 1892, and annual appropriations made pursuant thereto.
Answering the question specifically the final roll of the Pawnee Indians, approved September 2, 1921, may not legally be used for he distribution of the $30,000 annuity provided for in the ratified agreement of November 23, 1892, and by annual appropriations for such annuities made pursuant thereto.
OATHS—BOARD OF GENERAL APPRAISERS, CUSTOMS SERVICE. The members of the Board of General Appraisers, Customs Service, being ap
pointed by the President and having duties of a judicial nature, are not "employed " in relation to the collection of the revenue within the meaning of section 2693, Revised Statutes, and are accordingly not required to take
the oath prescribed by said section. Comptroller General McCarl to the Secretary of the Treasury, December 21,
There has been received your communication of October 17, 1922, requesting decision whether members of the Board of General Appraisers, Customs Service, should be required to take the oath provided by section 2693, Revised Statutes, in connection with the payment of salary.
The members of the Board of General Appraisers were exempted, by section 518 of the tariff act of 1922, approved September 21, 1922, 42 Stat., 972, from taking the oath required by section 1790, Revised Statutes, with relation to their salaries.
Section 2693, Revised Statutes, provides that, No account for the compensation for services of any clerk or other person employed in any duties in relation to the collection of the revenue, shall be allowed, until such clerk or other person shall have certified, on oath, that the same services have been performed, that he has received the full sum therein charged to his own use and benefit, and that he has not paid, deposited, or assigned, or contracted to pay, deposit, or assign, any part of such compensation to the use of any other person, or in any way directly or indirectly, paid or given, or contracted to pay or give, any reward or compensation for his office or employment, or the envoluments thereof.
The duties of General Appraisers, as prescribed by the tariff act of 1922 and prior enactments, are of a purely judicial nature. They are charged with the functions of “hearing and deciding appeals for the review of reappraisements of merchandise and of hearing and deciding protests against decisions of collectors," and they are granted “ all the powers of a district court of the United States for preserving order, compelling the attendance of witnesses, the production of evidence, and in punishing for contempt.”
If the oath in question is to be required of the General Appraisers, it must be shown that they are to be considered as fairly within the class affected by the act, supra. I am impressed that they should not be so considered. The class affected by the act includes “any clerk, or other person employed in any duties in relation to the col
lection of the revenue.” The General Appraisers clearly are not clerks, since their duties are of a judicial nature. It is doubtful if they may be considered as “employed ” within the meaning of the enactment for they are appointed by the President of the United States and the act of employment generally refers to the procurement of services by agreement. And, even assuming that they are employed “ within the meaning of the enactment,” their duties are not immediately “in relation to the collection of the revenue.”
You are accordingly advised that members of the Board of General Appraisers need not be required to take the oath provided by section 2693, Revised Statutes.
STREET-CAR FARE-PAYMENT OF, IN ADDITION TO PER DIEM IN
LIEU OF SUBSISTENCE. The fact that an employee of the Public Health Service in a continuous travel
status and on a per diem basis establishes temporary headquarters in a hotel does not entitle him to reiinbursement for street car fare in going
back and forth between such hotel and various places in that vicinity. Comptroller General McCarl to the Secretary of the Treasury, December 21,
I have by your reference the application of the Acting Surgeon General, dated November 14, 1922, wherein request is made for a decision as to whether Prof. C. W. Stiles, United States Public Health Service, is entitled to the items of the attached claim.
Under date of June 10, 1922, Professor Stiles was directed to proceed at such time as his then dutjes would permit to San Francisco, Calif., and such other places in the State of California as might be necessary for the purposes of determining and initiating as far as practicable investigations as to the present incidence and the probability of the spread of clonorchiasis in the United States. Upon the completion of this detail the professor was to return to his station in Washington, D. C.
While on this detail, allowance was authorized of $4 per diem in lieu of subsistence, together with actual and necessary transportation expenses.
It appears from the related papers that Professor Stiles arrived in San Francisco August 1 and thereafter incurred the following expenses: August, 1922:
1-San Francisco, California.
$0.05 ferry to hotel from Angel Island.
hotel to ferry for Berkeley--
. 36 Car fare, ferry to hotel from Berkeley-15_Car fare, hotel to ferry for Berkeley --
Ferry, San Francisco to Berkeley, round trip..
Car fare, ferry to hotel from Berkeley---17
hotel to ferry for Angel Island.
. 05 .05 .36