receiving a salary of $2,500 per annum. He was also disbursing agent of the Joint Library Committee of Congress, and gave a bond in $20,000. He was paid for his services as disbursing agent the sum of $400 per annum. There was never any specific appropriation for paying Mr. Graham, but payments were made to him quarterly, sometimes from one fund, under the direction of the committee, and sometimes from another, on approved vouchers of the chairman. After the passage of the act of June 20, 1874, (18 Stats., 101, 109,) his compensation as disbursing agent was disallowed by this office. He continued to discharge the duties, however, for two years, and then made application to Congress, through Hon. Geo. W. McCrary, for relief. The matter was referred to the First Comptroller for his opinion, for which see his letter of January 25, 1877, hereto appended. No further action was taken.

The next case was that of Mr. Hopkins for "reporting decisions" for the year ending June 30, 1874. The account was allowed; but Mr. Hopkins was notified of the law as re-enacted.

The Comptroller expressed no opinion on the merits of the case. (See his letter of July 27, 1875.) So the matter rested until the present, the practice being rather acquiesced in than confidently approved. Following is the letter first above referred to:

"TREASURY DEPARTMENT,

“First Comptroller's Office, Washington, D. C., January 25, 1877. SIR: I have the honor to acknowledge the receipt of your letter of the 23d instant, with the petition of John A. Graham, to be allowed eight hundred dollars for disbursing library funds for two years succeeding June 30, 1874. Prior to June 30, 1874, some compensation had been allowed the disbursing agent, though in Government employ, but I had strong doubts of its legality. I found it allowed when I came into the Department, and was not inclined to overrule the action of my predecessor. The re-enactment of the law in the Revised Statutes, in such strong language, reopened the question, and, in my judgment, forbade the allowance to an officer of the Department who received a fixed salary, and this seems to have been the view of Congress, expressed on various occasions. There is no objection to this allowance of Mr. Graham's claim that does not exist in many cases, and all seem to be governed by the same reasons and prohibited by the same or like law. I think the objection to the claim a reasonable one. ** * I should be disinclined to allow it. "R. W. TAYLER, Comptroller.

"Hon. GEO. W. MCCRARY,

"House of Representatives, Washington, D. C.”

IN THE MATTER OF THE LEGALITY OF ALLOWING ADDITIONAL PAY TO A CLERK DETAILED AS SPECIAL AGENT OF THE INDIAN OFFICE.-BENDER'S CASE.

1. The proceedings stated which are requisite to secure payment of expenditures incurred in the Department of the Interior.

2. The duty imposed by law on the Second Auditor "to record requisitions" for money is ministerial, and does not give him any supervisory power over the Second Comptroller.

3. The Secretary of the Interior has incidental authority to appoint a special agent to receive, inspect, and distribute Indian supplies, purchased under the Indian appropriation act of May 11, 1880.

4. The Secretary of the Interior also has authority to detail a clerk in his Department to act as such special agent.

5. Usage has sanctioned, and is evidence of, this authority.

6. The Secretary of the Interior has incidental authority to authorize the payment of the reasonable travelling expenses and hotel-bills of such agent while on such duty and absent from Washington.

7. The authority to allow such expenses carries with it the power to fix a limit which they shall not exceed, but does not authorize payments beyond actual expenses incurred.

8. The head of a Department may give a clerk therein a leave of absence without pay; but the clerk is an officer during such time, subject to the restrictions and prohibitions of the Revised Statutes, sections 170, 1763, 1764, 1765, and the act of June 20, 1874, (18 Stats., 101, 109.)

9. An officer cannot have his resignation take effect at a date prior to the day of tendering it.

10. When the head of a Department, by virtue of his general and incidental authority to carry out the provisions of an appropriation law, details a clerk in his Department to act as special agent to effect the objects of the appropriation, no compensation in addition to his salary as clerk can be paid such agent for such services, unless they are specifically authorized by law, and there is an appropriation which explicitly states that it is for such additional compen

sation.

11. When the Second Comptroller has regularly certified a balance due a claimant, the Secretary of the Treasury, notwithstanding section 191 of the Revised Statutes, has authority and is bound, under sections 248 and 3675 of the Revised Statutes, before issuing a warrant in payment thereof, to decide whether such warrant is "in pursuance of appropriations by law."

12. After the Secretary of the Treasury has decided such question in the affirmative, and has granted the warrant asked for, the First Comptroller is authorized and required, by virtue of section 269 of the Revised Statutes, to decide, before he countersigns the warrant, whether it is "warranted by law."

13. Section 191 of the Revised Statutes does not impair the authority given to the First Comptroller by section 269 to determine whether warrants issued are "warranted by law." These sections are independent; effect must be given to both, but the former cannot control or limit the latter.

14. The opinion of the Attorney-General, of date February 7, 1877, (15 Op., 608,) considered, and distinguished in principle from the case now presented.

15. The word "warrant," as used in section 273 of the Revised Statutes, means requisition. So the word "warrant," as used in the last clause of section 191, as to the submission by the head of a Department to a Comptroller of any facts in his judgment affecting the correctness of a balance certified to him by the Comptroller, means requisition when applied to the head of any Department other than the Treasury.

16. An Auditor, in stating an account, cannot properly make in favor of a claimant an allowance not asked for by him, and not covered by a voucher.

August 10, 1880, the Acting Secretary of the Interior granted leave of absence, without pay, for fifty days, from and including August 12, to Joseph T. Bender, financial clerk in the office of Indian Affairs, and, on August 11, appointed him special agent of the office, the appointment to date from August 12, to attend to the reception of Indian

supplies at, and their distribution from, San Francisco, with authority there to purchase special supplies, and with compensation fixed at $10.50 per day and necessary travelling expenses, as per Interior-Department order of March 24, 1879. Mr. Bender proceeded to New York, where supplies had been recently purchased, and, on August 13, was recalled and his appointment as special agent revoked. August 20, 1880, an account against the United States, in favor of Mr. Bender, was presented to the Second Auditor of the Treasury Department for four days' services, August 12 to 15, inclusive, at $10.50 per day, ($42,) and for items of travelling expenses in addition. The Second Auditor returned the account to the Commissioner of Indian Affairs, calling his attention to sections 170, 1764, 1765, 1768, and 2077, Revised Statutes. The Commissioner replied, that, as Mr. Bender was on leave of absence without pay, the sections cited were not applicable. The Auditor then suggested that leave without pay did not racate the office, nor warrant payment of compensation to Mr. Bender as special agent. With a view to meet these objections, Mr. Bender, on the 3d of September, tendered a resignation of his office of financial clerk, to take effect August 11. This was accepted September 4, the leave of absence was revoked, and Mr. Bender was reappointed as financial clerk, to take effect as of the 16th of August. The Auditor declined to state an account for the per diem compensation, but stated to the Second Comptroller an account allowing travelling expenses and hotel expenses, in accordance with the general order of the Secretary of the Interior of July 1, 1874, which allows:

"Hotel expenses not exceeding $5 per day, when the detention is incident to or necessary for the performance of the duties for which the travel is ordered." (See also Rev. Stats., 2077.)

The Second Comptroller decided that the full amount claimed as special agent was due, and he certified a balance accordingly to the Secretary of the Interior, who has drawn his requisition in favor of Mr. Bender for the amount, viz, $63.60, payable out of the appropriation for "purchase of Indian supplies." (Act of May 11, 1880, 21 Stats., 131.) The requisition has been countersigned by the Second Comptroller; and, in the usual course of business, it would have been "registered" in the Auditor's office and referred to the Secretary of the Treasury for his warrant. But the Acting Second Auditor has sent the requisition unregistered, with a letter dated October 2, 1880, to the Secretary of the Treasury, expressing a doubt whether a warrant to pay the account would be "warranted by law," and "whether the Secretary of the Interior had any authority to appoint Mr. Bender a special agent," (Rev. Stats., 2067,) and stating that, if he had not such

authority, "then the claim of Mr. Bender is barred by section 1765, Revised Statutes."

On October 4, 1880, the Secretary of the Treasury referred the papers "to the First Comptroller for an expression of his views on the points raised by the Second Auditor."

OPINION BY WILLIAM LAWRENCE, First Comptroller:

In this case, no question of law is presented in a form in which any final official action can now be taken by the Secretary of the Treasury or the First Comptroller. It is the duty of the Second Comptroller to certify to "the Secretary of the Department in which the expenditure has been incurred" balances arising on accounts stated by the Second, Third, and Fourth Auditors. (Rev. Stats., 273, 277.) In this matter the Second Comptroller certified to the Secretary of the Interior a balance found due to Mr. Bender. The Secretary of the Interior, as authorized by law, made a requisition upon the Secretary of the Treasury for the payment of the amount certified by the Second Comptroller. (Rev. Stats., 444.) It is the duty of the Secretary of the Treasury to grant warrants "for moneys to be issued from the Treasury in pursuance of appropriations by law." (Rev. Stats., 248, 3675.) If the requisition made by the Secretary of the Interior had been registered in the office of the Second Auditor, and presented in regular course of business to the Secretary of the Treasury, then the question would have been presented to the latter to decide whether, in his judgment, the warrant asked for by the requisition could be granted "in pursuance of appropriations by law." If he decided in the affirmative, and held the allowance to Bender duly authorized, he could issue a warrant to the Treasurer for the payment of the amount. (Rev. Stats., 248, 3675.) The warrant would then go to the First Comptroller, who would, before countersigning it, decide whether it was "warranted by law." (Rev. Stats., 269, 444, 3675.)

These are the points in the regular course of business at which the Secretary of the Treasury and the First Comptroller would respectively be called to decide authoritatively respecting the merits of the case. (See 15 Op. Att'ys-Gen., 193; Senate Ex. Doc., No. 46, 2d Sess. 40th Cong., April 7, 1868.)

There is an appropriation applicable to the payment of this claim, if the claim itself be one authorized by law. (Act May 11, 1880; 21 Stats., 131.)

There is no law or usage by which the Second Auditor can, in the form adopted, present any question for final action. It is the right of the Second Auditor to give to the Second Comptroller, with the

account stated, an opinion on its merits and place it with the papers, both in justification of his action and for the information of the Secretary of the Treasury and the First Comptroller. The Second Auditor and the Second Comptroller may also properly give to the Secretary of the Treasury or the First Comptroller any information in their possession which may be necessary to enable the latter officers to act understandingly. The duty imposed on the Auditor to record all requisitions is ministerial, and does not modify section 191 of the Revised Statutes, or give him any supervisory power over the Second Comptroller. The decision of the Comptroller is conclusive upon the Auditor; there is no appeal, or right to demand a review of it. (Rev. Stats., 283, 441, 444; act May 7, 1822, sec. 3; 3 Stats., 689; 15 Op. Att'ys-Gen., 139.)

Section 283 of the Revised Statutes does not in terms refer to requisitions from the Department of the Interior; but it refers to those from the War Department, of which the Indian Office was a bureau prior to its transfer to the Department of the Interior by the fifth section of the act of March 3, 1849, (9 Stats., 395.) By this section the Secretary of the Interior is authorized and required to "sign all requisitions for the advance or payment of money out of the Treasury, on estimates or accounts [relative to Indian affairs], subject to the same adjustment or control now [theretofore] exercised on similar estimates or accounts by the Second Auditor and Second Comptroller of the Treasury." This places the requisition now in question on the same footing as others. (Audit case, ante, 43.)

Assuming that the requisition will be returned to the Second Auditor to be registered, and that all the questions stated will then arise in due course, the First Comptroller, obeying the request of the Secretary of the Treasury "for an expression of his views on the points raised by the Second Auditor," submits the following pages as the result of his examination of those points.

I. The appointment of Mr. Bender as special agent was authorized by law. If there was no authority to appoint, there could be no claim even for expenses. Such authority did exist, however. The Secretary of the Interior is charged with "the supervision of public business relating to the Indians," and is authorized "to prescribe regulations," general or special, not inconsistent with law, for the performance of the business intrusted to his care. (Rev. Stats., 161, 441, 463, 464.) He is charged with the duty of purchasing supplies for Indians. (Act May 11, 1880; 21 Stats., 131.) The principles upon which the appointment of special agent was authorized have been noticed in the Inspectors' case, ante, 207.