erly incurred and for fulfillment of contracts properly made within those years, so that the balances remaining can not be charged (8 Comp. Dec., 369; 18 Op. Atty. Gen., 412), and it can not be contended that the current appropriation, 1912, made two years after the purchase, with no reference to it, is available.

That Congress did not intend in cases like this, where a sum is found to have been due from an appropriation carried to the surplus fund of the Treasury, that such sum should be charged to an appropriation for a subsequent year, is shown by section 3691 of the Reyised Statutes as amended by the act of June 14, 1878 (20 Stat., 115, 130), which makes provision as follows:

"And it shall be the duty of the several accounting officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations the balances of which have been exhausted or carried to the surplus fund under the provisions of said section that may be brought before them within a period of five years. And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration."

For the reasons shown, I must answer the question in the last paragraph of your letter in the negative.

Respectfully,

R. J. TRACEWELL, Comptroller.

[From Assistant Secretary to Bureau of Ordnance. Subject: Comptroller of the Treas ury, Nov. 13, 1911, decides that "Ammunition for ships of the Navy' is an annual appropriation, and is not available for payment of sums due Firth-Sterling Steel Co. for projectiles furnished under contract of Apr. 6, 1909.]

[First indorsement.]

NAVY DEPARTMENT, November 15, 1911.

Referrred, for the information and guidance of the bureau, as a reply to its letter No. 22455/58 (H) of the 23d ultimo.

In view of this decision no further payment from current appropriations will be made to the Firth-Sterling and Bethlehem Cos. under the contracts referred to in the bureau's communication.

APPENDIX D.

WINTHROP.

The SECRETARY OF THE NAVY.

TREASURY DEPARTMENT, Washington, January 11, 1912.

SIR: I have received your letter of the 26th ultimo, as follows: "I have the honor to inclose herewith a communication, dated the 15th instant, received from the Bureau of Supplies and Accounts of this department, inviting attention to certain paragraphs of your decision of November 13, 1911, in reply to this department's letter of November 7, and recommending that you be asked to review a portion of said decision and remove therefrom the doubt therein cast upon the appropriation ‘Ammunition for ships of the Navy,' and appearing in the acts of March 3, 1909, June 24, 1910, and March 4, 1911, as well as any and all other appropriations shown in the Treasury Digest and appropriation warrants as without year.

"Your further decision in the premises is respectfully requested, the importance of which will be apparent to you upon a perusal of the bureau's letter * *

In my decision of November 13 last, to which you refer, it was indicated that the appropriations for ammunition for ships of the Navy made for the fiscal years 1909, 1910, 1911, and 1912 were not permanent, but annual appropriations, the difference being that the unexpended balances of annual appropriations are required by section 3690, Revised Statutes, and section 5, act of June 20, 1874 (18 Stat.. 110), to be carried to the surplus fund of the Treasury two years after the fiscal year in which they become available for expenditure, while permanent appropriations are excepted from this requirement. The statutes referred to are as follows:

"SEC. 3690. All balances of appropriations contained in the annual appropriatlon bills, and made specifically for the service of any fiscal year, and remaining unexpended at the expiration of such fiscal year, shall only be applied to the

payment of expenses properly incurred during that year, or to the fulfillment of contracts properly made within that year; and balances not needed for such purposes shall be carried to the surplus fund. This section, however, shall not apply to appropriations known as permanent or indefinite appropriations."

"SEC. 5 (act of June 20, 1874). That from and after the first day of July, eighteen hundred and seventy-four, and for each year thereafter, the Secretary of the Treasury shall cause all unexpended balances of appropriations which shall have remained upon the books of the Treasury for two fiscal years to be carried to the surplus fund and covered into the Treasury: Provided, That this provision shall not apply to permanent specific appropriations, appropriations for rivers and harbors, lighthouses, fortifications, public buildings, or the pay of the Navy and Marine Corps; but the appropriations named in this proviso shall continue available until otherwise ordered by Congress,

The appropriations under consideration have been made in the annual appropriation acts for the naval service under Bureau of Ordnance," as follows: For the fiscal year 1909 (35 Stat., 132), “Ammunition and other supplies for ships," $2,750,000; for fiscal year 1910 (35 Stat., 759), “Ammunition for ships," $3,000,000; for fiscal year 1911 (36 Stat., 611), "Ammunition for ships of the Navy," $2,500,000; for fiscal year 1912 (36 Stat., 1271), "Ammunition for ships of the Navy," $2,850,000. They appear in the Digest of Appropriations, issued by the Treasury Department, Division of Bookkeeping and Warrants, as without year, except the first, which is digested under the year 1909, and has been treated and conceded to be an annual appropriation.

They are "For procuring, producing, preserving, and handling ammunition for issue to ships," and are therefore specific, like most appropriations for supplies or services of one kind of description, but it does not follow that they are permanent as well as specific.

It was said in 9 Comptroller's Decisions, 759:

"An appropriation for a specific object contained in an act making appropriations for the service of a particular fiscal year should not be construed to be a permanent appropriation unless the character of the object for which it is made or the language of the appropriation renders it clear beyond reasonable doubt that such was the intention of Congress."

The appropriation for 1912 (and the others by similar acts) was made in the regular annual appropriation act entitled "An act making appropriation for the naval service for the fiscal year ending June thirtieth, nineteen hundred and twelve, and for other purposes," and the enacting clause is as follows:

"That the following sums be, and they are hereby, appropriated, to be paid out of any money in the Treasury not otherwise appropriated, for the naval service of the Government for the year ending June thirtieth, nineteen hundred and twelve, and for other purposes."

There is nothing in this title and enacting clause to indicate anything other than an annual appropriation, and to overcome the presumption arising therefrom there should be found some definite, specific language to make an exception in any particular item of appropriation, or the character of the expenditure to be such as to clearly indicate a permanent appropriation. It is the general practice of Congress, when making a permanent appropriation, to specify that it shall remain "available until expended," or similar expression. Such does not appear in the appropriations under consideration.

The character of the object for which these appropriations were made does not by any means render it clear that they were intended to be permanent. The production of ammunition does not require a long period or term of years like the building of a large ship.

Annual appropriations are available for three years from the beginning of the year for which appropriated, viz, one year for incurring expenses and making contracts and two additional years for making payments therefrom, and under these conditions it would not seem to be difficult to procure the needed ammunition. Congress has made an appropriation each year for this purpose, which is evidence that they were intended to be annual appropriations for the needs of each year.

ex

In a decision of this office dated May 20, 1908 (14 Comp. Dec., 807), in which it was held that an appropriation made annually for 1906 and 1907, for " perimental and research work" at the engineering experimental station, United States Naval Academy, was an annual appropriation, it was said:

"The fact of a similar appropriation in several successive years without any express provision for continued availability seems to preclude the idea that

Congress intended the unexpended balances of these appropriations to be available for expenditure after the expiration of the fiscal years for which they were severally made."

It is understood that a large part of the ammunition purchased from the appropriations is accumulated and held as a reserve stock. This office held in a decision of June 25, 1900 (13 MS. Comp. Dec., 1056), rendered upon the application of the Secretary of the Navy to the Secretary of the Treasury, that appropriations for Reserve supply of ammunition" and "Purchase and manufacture of smokeless powder" were annual appropriations.

It was held in a decision of March 15, 1905 (11 Comp. Dec., 529), that an appropriation authorizing the Secretary of the Navy to contract for or to purchase subsurface or submarine torpedo boats after preliminary tests was an annual one, and in a decision of August 5, 1908 (46 MS. Comp. Dec., 748), that an appropriation of $1,575,000 for the purchase of three new steam colliers was also an annual appropriation.

The procuring of ammunition to be accumulated for ships of the Navy is practically the same as an appropriation for a reserved supply of ammunition which by the decision referred to (13 MS. Comp. Dec., 1056) was held to be an annual appropriation, and the procuring of ammunition for ships is not necessarily more permanent in character than the objects for which the appropriations were made and were held to be annual in the other decisions mentioned.

By section 10 of the sundry civil appropriation act of March 4, 1909 (35 Stat., 945, 1027), it was directed that all unexpended balances of appropriations which remained on the books of the Treasury July 1, 1904, "except permanent specific appropriations ," be carried to the surplus fund

* *

of the Treasury, and a proviso in that section defines what was meant by 'permanent specific appropriation," as follows:

46

"For the purposes herein declared no appropriation made prior to July first, nineteen hundred and four, shall be construed to be a permanent specific appropriation unless by its language it is specifically and in express terms made available for use until expended."

By the act incorporated in the Revised Statutes as section 3690, the act of June 20, 1874 (18 Stat., 110), and other acts of similar character, it is made plain that unexpended balances of appropriations shall not be accumulated for more than two years but shall be covered into the surplus fund of the Treasury unless coming clearly within the exceptions specified.

After a careful consideration of the laws bearing upon the question_submitted as to the appropriations for ammunition for ships of the Navy I am constrained to conclude that they are annual appropriations the unexpended balances of which are required to be covered into the surplus fund of the Treasury as provided by the laws quoted.

The other appropriations made in the naval appropriation act of March 4, 1911 (36 Stat., 1265, 1270), under "Bureau of Ordnance" and digested without year, other than for certified claims which are held to be permanent specific,

are:

"Naval Gun Factory, Washington, D. C.;" "New batteries for ships of the Navy;" "Fire control for ships of the Navy, Bureau of Ordnance;" "Small arms and machine guns, Bureau of Ordnance;" "Reserve torpedoes and appliances, Bureau of Ordnance;" Experiments, Bureau of Ordnance;" "Arming and equipping Naval Militia, Bureau of Ordnance."

66

Each of these appropriations has been made annually, all of them for two years and some for many years. So far as appears, the objects for which they were made are not of such character as to compel the presumption, in the absence of definite language in the appropriation acts, that they were made as permanent specific appropriations. I am therefore of opinion that all of them are annual appropriations and should be treated as such.

If I have not arrived at the true intent of Congress as regards the character of the above appropriations, and I have little doubt as to this point, it is suggested for your consideration that it will be an easy matter in the forthcoming naval appropriation bill for the fiscal year 1913 to induce it to make the balances of these appropriations available until used for the purposes for which made, and if it is the intention of Congress to make these appropriations for the future permanent appropriations, to use appropriate language to so convey its meaning. As above indicated, I have adhered to the rule long established by the accounting officers, to hold appropriations made in the annual approfication in treating them as permanent. But such digesting can not make an

their subject matter to indicate that more than a year from the time when they become available is necessary to effectuate their purpose.

In view of the fact that no year was assigned to these appropriations in the Digest of Appropriations, those charged with their expenditure had some justification in treating them as permanent. But such digest can not make an annual appropriation a permanent one. I therefore do not feel disposed to disallow expenditures under contracts made prior to this date, but with the exception of obligations already incurred, these appropriations will be treated as annual appropriations as required by section 3690, Revised Statutes, and the act of June 20, 1874 (18 Stat., 110).

Respectfully,

R. J. TRACEWELL, Comptroller.

APPENDIX E.

A BILL To make certain naval appropriations available for two years, and for other

purposes.

[And to render available the unobligated balances of Jan. 11, 1912.]

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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That hereafter appropriations for the naval service under the headings "Ammunition for ships of the Navy," "Fire-control instruments for ships of the Navy," "Small arms and machine guns,” “Torpedoes and appliances," "Experiments, Bureau of Ordnance," "New batteries for ships of the Navy," "Arming and equipping Naval Militia," Modernizing projectiles," "Modernizing turrets of ships of the Navy," "Naval gun factory, Washington, District of Columbia," and "Battle compasses," shall be available for obligation for two fiscal years: Provided, That the balances unobligated on January eleventh, nineteen hundred and twelve, under any of these appropriations, shall be available for obligation until the close of the fiscal year ending June thirtieth, nineteen hundred and thirteen.

APPENDIX F.

Statement of money involved under comptroller's decision of Jan. 11, 1912.

NOTE.-Column 2: These are the amounts immediately affected by the comptroller's decision of Jan. 11, 1912, i. e., returned to the surplus fund. Column 3: These amounts are the sums of the unobligated balances of the current appropriations (act of Mar. 4, 1911) and the amounts shown in column 2, and any remaining balances on June 30, 1912, will be returned to the surplus fund unless Congress directs otherwise. These prospective balances were considered as available for 1913 when the estimates for that year were made up.

APPENDIX G.

Following the comptroller's decision we have stopped work in connection with the following appropriations:

New batteries for ships of the Navy-five subheads, involving a total balance of $228,460.41.

Reserve torpedoes and appliances-subhead remodeling torpedoes (act of June 24, 1910). Balance, $101,186.89.

The balances given are the approximate balances of the appropriations involved which were nnobligated December 31, 1911.

One of the subheads under the appropriation new batteries for ships of the Navy was for a new battery for the Brooklyn. No financial loss to the Government has resulted from the suspension of this work, and it is probable that at the close of the present fiscal year this sum would be turned in to the Treasury as not being required to cover further expenditures.

The second subhead under this appropriation covered the substitution of 3-inch guns for 3-pounder and 6-pounder guns on board ship, and as the work originally contemplated is nearly completed it is probable that such balance as remains on June 30, 1912, would be turned in to the Treasury in any event.

The third subhead under this appropriation covered the replacing of 8-inch Mark V guns, .40 caliber, with Mark VI guns, .45 caliber. This is subject to the same remarks as those given in the preceding case.

The fourth subhead provided for relining and converting to Mark IV 12-inch Mark III guns. There still remain eight guns to be converted under this appropriation, and the bureau has been unable to expend the money earlier owing to the impracticability up to this time of removing these eight guns from the ships in which they are now installed and substituting others for them.

The fifth subhead covered lining and hooping to the muzzle 8-inch Mark V guns. There are 24 of these guns to be modified and the work can not be done unless the appropriation is continued in force.

The work of remodeling torpedoes was for the purpose of increasing the speed and range of some of the older torpedoes in service. The bureau was unable to take up this work until about January 1 of the current calendar year owing to press of other work at the torpedo station caused by the increased torpedo practice in the fleet. This work is necessarily suspended and can not be resumed unless the appropriation is made available.