(14 Stats., 40), May 31, 1872 (17 Stats., 83), September 28, 1850 (9 Stats., 507), July 28, 1866 (14 Stats., 336), May 3, 1872 (17 Stats., 83), March 3, 1875 (18 Stats., 410), March 3, 1847 (9 Stats., 171), and June 8, 1872 (17 Stats., 337).

None of these acts relate to the question in respect of paying in the gross or net proceeds. Upon the original statutes, so far considered, the gross proceeds of all sales other than those within the exception of section 3618 of the Revised Statutes are to be covered into the Treasury.

5. The same result follows from another consideration: It was in substance provided in paragraph 1032 of the "Army Regulations of 1863" that the expenses of sales of military stores and of other Army supplies regularly condemned should be paid from the proceeds. But section 5 of the act of May 8, 1872 (17 Stat., 83), which has been carried into section 3618 of the Revised Statutes, required "all proceeds of sales of old material, condemned stores, supplies, or other public property of any kind," excepting only receipts of sales of marine hospitals, revenue cutters, condemned Navy clothing, and commissary stores sold to officers of the Army, to be covered into the Treasury. This section of the act of 1872 was regarded as abrogating the provision of paragraph 1032 of the Army Regulations referred to. As such effect was not perhaps intended, the act of June 8, 1872 (17 Stat., 337), declares that section 5 of the act of May 8, 1872, "should not be held to repeal" the provision of the Army Regulations which directs the expenses of sales of "military stores or supplies regularly condemned" to be paid from the proceeds. The act of June 8, 1872, was a legislative construction of the act of May 8, 1872, that the gross proceeds of other sales which are not specially excepted from the general provisions of law should be paid into the Treasury. Expressio unius est exclusio alterius. (See District Land Office case, 2 Lawrence, Compt. Dec., 421.) Paragraph 1032 of said Army Regulations of 1863 is now paragraph 1625 of the Army Regulations of 1881. Is this a valid regulation? Of course a regulation made by the head of a department cannot be operative if it be in conflict with a statute. The act of June 8, 1872 (17 Stat., 337), which gave effect to this regulation, is not wholly incorporated with the Revised Statutes. That clause of the act relating to "military stores or supplies regularly condemned" has not been incorporated with section 3618 of the Revised Statutes, or with any other section; hence it has, by section 5596, been declared to have been repealed. Unless the omitted portion of this act can be considered as being still in force, and it cannot, paragraph 1625 of the Army Regulations of 1881 is in conflict with the statutes, and is therefore void and of no effect. (Audit case, 1 Lawrence, Compt. Dec., 43 n.; Edmunds' case, 2 Lawrence, Compt. Dec., 528.) This view of the case is supported by the act of June 22, 1874 (18 Stat., 200), which authorized the Secretary of War to sell "all obsolete and unserviceable ammunition and leaden balls

" then stored in various arsenals, "and to cause the net

to be "This is a

proceeds of such sale, after paying all costs and expenses, covered into the Treasury of the United States legislative construction that without such enactment the expenses of the sale could not have been paid from the proceeds. The power to sell such property already existed by express provision of the act of March 3, 1825, now section 1241 of the Revised Statutes, which authorizes the President, and therefore the Secretary of War, to "cause to be sold any ordnance, arms, ammunition, or other military stores, or subsistence or medical supplies, which shall appear to be damaged or otherwise unsuitable for the public service ." Section 3618 of the Revised Statutes directs that proceeds of sales of "public property of any kind" should be covered into the Treasury, and thus tacitly admits the existence of a power to sell such property. The act of 1874 was necessary, not to grant a power to sell, but to authorize the expenses of such sale to be deducted from the proceeds. See in this connection the provision in respect to such sales under Navy and War Departments, contained in the act of March 3, 1875 (18 Stat., 388), from which it might be implied that expenses of sales of useless ordnance in the War Department as well as in the Navy Department might be deducted from pro- ⚫ 'ceeds.

While it is true that the Army Regulations of 1881 were codified and published under the authority of section 2 of the act of June 23, 1879 (21 Stats., 34), and that the recognition by Congress of a regulation or practice of an executive department generally gives, if it were otherwise wanting, legal effect to such practice or regulation, it does not in this case follow that the provision in paragraph 1625 of the codified Regulations in respect of paying expenses from proceeds of sales is valid, for the act of 1879 authorized the codification only of such regulations of the Army as were in force at the date of this act. It has already been shown that paragraph 1032 of the Regulations of 1863 was inoperative after the enactment of the Revised Statutes, because of the omission from the revision of that part of the act of June 8, 1872, which had recognized its validty; hence paragraph 1625 of the codified Regulations is now inoperative.

6. This question should, in respect of proceeds of sales of public property which are not specially excepted from the operation of the general provisions of law, be considered as settled by decisions and usage. On the 11th of May, 1872, the Secretary of the Treasury asked the opinion of the First Comptroller on this subject in respect of the provisions of section 5 of the act of May 8, 1872, and the latter officer rendered the following opinion:

TREASURY DEPARTMENT,

First Comptroller's Office, May 13, 1872.

SIR: I have to acknowledge the receipt of your letter of the 11th instant, inclosing copy of the fifth section of the legislative, executive, and judicial appropriation act, approved May 8, 1872. You inquire—

First. Whether this section goes into effect before the 1st of July next?

Every provision of law is of present effect, except when otherwise provided. The act, of which this is a portion, is one making appropriations for the fiscal year 1872, but its general purpose has no relation to this specific provision and does not control it. This section neither makes nor controls the use of any appropriation contained in the act; it is independent of other provisions, and is not affected by the portion which limits the period during which appropriations can be used. I answer, therefore, that it went into effect on the approval of the bill. Second. Does it apply to the sale of new material from one department or bureau to another, or is it confined to old and condemned public property?

It applies to all kinds of property, old or new, condemned or uncondemned, with certain exceptions contained in the second sentence, and to sales by one department or bureau to another. The language is, "that all sales of old material, condemned stores, supplies, or other public property of any kind shall hereafter" be covered into the Treasury as miscellaneous receipts. The words "or other public property of any kind” are very comprehensive, and exclude the construction suggested in the question.

I do not mean to say that when one branch of the service makes some article, as a piece of furniture, from its own material, and at its own expense, for and upon the request of another branch, that the cost must be covered in as a miscellaneous receipt.

Third. Proceeds of paper shavings sold by the Congressional Printer must be paid in under this section.

Fourth. The act says, "all proceeds of sales," &c., "or other public property," and thus embraces all receipts and all property sold. The expenses attending a sale cannot be deducted, for that would defeat a compliance with the requirement "that all proceeds of sales" shall be paid in, &c.

I am, very respectfully,

R. W. TAYLER,

Comptroller.

Secretary.

Hon. GEORGE S. BOUTWELL,

Pursuant to this opinion the Secretary of the Treasury issued the following "instructions concerning the disposition of the proceeds of sales of public property under the fifth section of the act of May 8, 1872, and an act amendatory of said section, approved June 8, 1872."

1872.

DEPARTMENT No. 80.

Ind't Treasury Division No. 7. S

TREASURY DEPARTMENT, July 9, 1872.

*

All officers of the United States are instructed that the proceeds of sales of public property, of every character and description, excepting such as pertain to marine hospitals, revenue cutters, the clothing fund of the Navy, and the sale of materials, stores, or supplies to officers and soldiers of the Army, or to exploring and surveying expeditions authorized by law, which are to be disposed of in accordance with former provisions of law, must be immediately paid into the Treasury as miscellaneous receipts, without any abatement or deduction whatever, excepting the expenses of sales of military stores or supplies regularly

condemned, which, under paragraph 1032, Revised Army Regulations of 1863, and the act of June 8, 1872, are authorized to be paid from the proceeds of such sales, by being deposited to the credit of the Treasurer of the United States in general account, either at the Treasurer's own office or at the office of one of the United States assistant treasurers, designated or national bank depositaries.

For all such deposits, certificates of deposit, in duplicate or triplicate, should be issued by the several depositaries, giving the name and official title of the depositor, and stating that they are on account of "proceeds of government property." The bureau or office to which the property appertains should also be given on the face or back of each certificate, and an explanation of the kind and amount of property sold, and the original of these certificates should always be forwarded to the Secretary of the Treasury as soon as they shall have reached the depositors.

GEO. S. BOUTWELL,
Secretary of the Treasury.

The construction given to statutes by executive officers who are charged with the duty of carrying them into effect, should, when it has been followed for any considerable period in the practice of the department, generally be adhered to. (United States v. Moore, 95 U. S., 763; Edwards v. Darby, 12 Wheat., 210; United States v. State Bank, 6 Pet. 29; United States v. Macdaniel, 7 Pet., 14; United States v. Bowen, 100 U. S., 511.) But if such construction be clearly erroneous, it should not be followed. (See such a case in Finance Report, year 1856–7, pp. 82-89.)

As to the question, "What disposition is to be made in each case of the gross or net proceeds of sales?" the answer is, that when not otherwise excepted by law, they are to be paid into the Treasury without any abatement or deduction whatever (Rev. Stats., 3617), and be covered in "as miscellaneous receipts on account of proceeds of government property," and not "be withdrawn or applied except in consequence of a subsequent appropriation made by law. (Ib. 3618.) The classes of proceeds of sales of property excepted from this mode of disposition are enumer ated in section 3618 of the Revised Statutes. The language of section 3692, in respect of such proceeds, is that they "shall respectively revert to that appropriation out of which they were originally expended;" that is to say, according to the act of March 3, 1847 (9 Stats., 171, sec. 1), from which the provision is partly taken, "to that appropriation from which such [property] stores and other articles were originally purchased." On this language, and in view of the two years' limitation prescribed in section 5 of the act of June 20, 1874 (18 Stats., 110), in respect of expenditure of appropriation, a question may arise as to whether the reverted proceeds of the excepted classes of sales can be expended without subsequent appropriation when the original appropriation has "remained upon the books of the Treasury for two fiscal years."

It has already been shown that the gross proceeds of sales of "military stores or supplies regularly condemned," must now be deposited as proceeds of government property, without any deduction therefrom on account of "expenses of sales." (Ante, 45)

As to the proceeds of sales of revenue cutters, which are generally built from "permanent specific appropriations," the proceeds may be expended without limitation as to time, because such appropriations are not intended to be covered into the Treasury under the act of June 20, 1874. (18 Stats., 110, sec. 5.) But as to proceeds of sales of articles which were originally purchased from any annual appropriation, and which accrue after such appropriation has remained upon the books of the Treasury for two fiscal years, they are not available for current use. (Ib.)

The general words of sections 3617 and 3618 of the Revised Statutes do not apply to proceeds of sale of unserviceable supplies or other property originally purchased from the marine-hospital fund, or to proceeds of sale of surplus live stock, vegetables, or forage raised by employés on the hospital grounds.

The last clause of section 3685 of the Revised Statutes provides that "in no case shall any special appropriation be available for more than two years without further provision of law." Therefore, unless such appropriation belongs to one or other of the classes mentioned in the first proviso of section 5 of the act of June 20, 1874 (18 Stats., 110; 1 Lawrence, Compt. Dec., Appendix, p. 578), or is otherwise excepted by law from the operation of section 3685, the proceeds of sales of articles originally purchased from such an appropriation cannot, without reappropriation, be expended when such appropriation has remained on the books of the Treasury two fiscal years.

The statute authorizes the President "to receive donations of real or personal property, in the name of the United States, for the erection or support of hospitals for sick and disabled seamen." (Rev. Stats., 4801.) The supervision of "all matters connected with the Marine Hospital Service" is "under the direction of the Secretary of the Treasury." (Ib., 4802.) The several collectors of customs, respectively, are required to "deposit, without abatement or reduction, the sums collected by them under the provisions of law imposing a tax upon seamen for hospital purposes, and with the nearest depositary of public moneys." The taxes so collected are to be placed to the credit of "the fund for the relief of sick and disabled seamen employed in registered, enrolled, and licensed vessels of the United States." (Ib., 4803.) The property donated by private individuals for the erection and support of Marine Hospitals, when accepted by the President, becomes the public property of the United States. Congress, by the act of April 20, 1866 (14 Stats., 40), which authorizes the Secretary of the Treasury to sell or lease such marine-hospital buildings and lands appertaining thereto as he may deem advisable, has recognized the title of the United States in such realty as proprietary not only in name but for all purposes of grant and conveyance. In respect of such property the United States can, in proper cases, maintain actions of ejectment, replevin, or trover, and in respect of movable property of the hospitals it may maintain an action in detinue. But when any maH. Ex. 219-4