of the Navy, with the rank, pay, and allowances of a captain in the Navy or a colonel in the Marine Corps, as the case may be, and the Office of the said Judge-Advocate-General shall be in the Navy Department, where he shall, under the direction of the Secretary of the Navy, receive, revise, and have recorded the proceedings of all courts-martial, courts of inquiry, and boards for the examination of officers for retirement and promotion in the naval service, and perform such other duties as have been performed by the Solicitor and naval Judge-Advocate-General."

On the 15th day of July, 1892, the claimant, at that time a lieutenant in the Navy of the United States, was, by and with the advice and consent of the Senate, originally appointed Judge-Advocate-General of the Navy for the term of four years from the 5th day of June, 1892, and took the oath of office July 19, 1892. At the time of his appointment there were three kinds of pay fixed for a captain of the Navy, dependent upon the character of the services performed, viz, captains, when at sea, $4,500; on shore duty, $3,500; on leave or waiting orders, $2,800. (Sec. 1556, Revised Statutes.)

In the case of Lemly v. United States (28 Ct. Cl., 468) it was held, November 13, 1893, that the claimant, as JudgeAdvocate-General of the Navy, was entitled to be paid the shore-duty pay of a captain in the Navy, $3,500 per annum, and not the sea pay of a captain in the Navy, $4,500 per

annum.

The act of June 5, 1896 (29 Stat., 251), provides:

That the act to authorize the President to appoint an officer of the Navy or the Marine Corps to perform the duties of Solicitor and Judge-Advocate-General, and so forth, and to fix the rank and pay of such officer, approved June eighth, eighteen hundred and eighty, is hereby amended by inserting in said act in lieu of the words "with the rank, pay, and allowances of a captain in the Navy, or a colonel in the Marine Corps, as the case may be, the words with the rank and highest pay of a captain in the Navy, or the rank, pay, and allowances of a colonel in the Marine Corps, as the case may be: Provided, That this amendment shall take effect from July nineteenth, eighteen hundred and ninety-two, the date on which the present incumbent entered on duty, and that the amount herein appropriated shall be payable from the appropriation "Pay of the Navy.””

Since the passage of the act of June 5, 1896, supra, claimant has been paid at the rate of $4,500 per annum, or the pay of a captain in the Navy when at sea, which was the "highest

pay of a captain in the Navy" at the time of the passage of said act.

By said act of June 8, 1880, as amended by said act of June 15, 1896, the President was authorized to appoint claimant a Judge-Advocate-General of the Navy, with the rank and highest pay of a captain in the Navy. As already stated, at the time of the passage of said acts the highest pay of a captain in the Navy was $4,500 per annum. The evident purpose of said act of June 15, 1896, was to give to claimant the sea pay of a captain instead of shore-duty pay. It contains no phrase looking to the future. It provides the highest pay of a captain, but not the pay which a captain in the Navy might thereafter have; no words of anticipation are in this act. (See Keppler v. United States, 27 Ct. Cl., 482.) Under the above decision, by the acts of June 8, 1880, and June 15, 1896, the pay of the Judge-Advocate-General was fixed at $4,500 a year as distinctly as if they had specifically named said amount. (See also Kinsey v. Sherman, 46 Iowa, 463; Johnson County Solicitor v. Lovett County Judge, 65 Ga., 716.)

At the time of the passage of said acts a colonel of the Marine Corps had but one rate of regular pay, while a captain. in the Navy had three, hence the significance of the word "highest."

Section 7, act of April 26, 1898 (30 Stat., 365), provides:

"That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised: Provided, That a rate of pay exceeding that of a brigadier-general shall not be paid in any case by reason of such assignment."

In Thomas v. United States, No. 22790, decided by the Court of Claims January 5, 1903, it was held that said section 7 was applicable to naval officers. Under this decision, if in time of war a captain in the Navy serving in the places mentioned in the acts cited by the Auditor, and also serving with troops operating against an enemy, should exercise, under assignment in orders issued by competent authority, the command of a rear-admiral of the nine lower numbers of that

grade, he would, while so serving, be entitled "to receive the pay and allowances of the grade appropriate to the command so exercised," increased 10 per centum for foreign service, which I suppose would be the "highest pay" a captain in the Navy can receive; but I do not think the laws giving him this higher pay for such special service would in any way affect the pay of the Judge-Advocate-General of the Navy.

Under the first law mentioned the higher pay for exercising a higher command is dependent upon the conditions mentioned in said act, and the increased 10 per centum on pay proper provided in the acts cited by the Auditor is dependent upon the conditions mentioned in said acts, and I can see no reason why the conditions, which are conditions precedent and which must be performed to entitle the officer to the higher or additional pay, may not be waived under the former act as well as they could be waived under the latter acts. The office of the Judge-Advocate-General is in the Navy Department, where he performs the duties of his office, while the additional pay for foreign service, which is the 10 per centum additional pay claimed, is in no case provided for officers serving anywhere within the limits of the States comprising the Union or Territories contiguous thereto. The acts giving the 10 per cent increase mentioned by the Auditor do not make any changes in the ordinary or regular pay of officers; but make provisions for a 10 per cent increase on pay proper for special service, because such special service is extra hazardous and entails increased expenses of living upon the officers, but these facts do not support the contention that because of them the pay of the Judge-Advocate-General should be increased.

I am of opinion that the pay of the Judge-Advocate-General of the Navy is $4,500, as fixed by the acts of June 8, 1880, and June 15, 1896, supra, without the additional 10 per cent provided for special services in the acts cited by the Auditor, and the decision of the Auditor is approved.

28007 Vol. 11-05-2

TRAVELING EXPENSES OF CLERKS IN THE BUREAU OF CORPORATIONS WHILE ENGAGED IN FIELD WORK.

Under the provision in the act of March 3, 1875, that employees of the Government, excepting certain officials therein mentioned, should only be reimbursed for actual traveling expenses, payment of a per diem in lieu of subsistence to clerks in the Bureau of Corporations while engaged in field work is not authorized.

(Acting Comptroller Mitchell to the Secretary of Commerce and Labor, July 16, 1904.)

With your communication of July 12, 1904, you inclose a communication from the Commissioner of Corporations, dated July 11, 1904, and request my decision of a question presented therein as follows:

"I beg to advise you of a situation existing in the Bureau of Corporations in connection with which the opinion of the Comptroller of the Treasury is desired as to whether or not a per diem can be allowed to clerks in this Bureau when engaged upon work in the field. It may be well that the Comptroller be advised of the following facts, in order that he may properly apply the existing law in relation to them.

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Prior to July 1, 1904, all employees in the Bureau of Corporations were special agents, except the Commissioner, the Deputy Commissioner, the chief clerk, and three messengers, who occupied statutory positions. For the compensation of these special agents and for their per diem in lieu of subsistence while absent from their homes and designated headquarters on duty and for their actual necessary traveling expenses, subject to such rules and regulations as you might prescribe, there was appropriated the sum of $60,000. Under the urgent deficiency act of February 18, 1904, an additional $30,000 was appropriated, covering the same positions and for the same purposes.

"Under the legislative, executive, and judicial bill of March 18, 1904, there was created in the Bureau of Corporations a number of statutory positions, namely, four clerks of class four, four clerks of class three, five clerks of class two, etc. Certain changes were made in the designation of the special agents by naming them as special attorneys and special examiners, and provision was made for temporary assistants.

"On July 1 the employees of this Bureau who had formerly been designated as special agents were transferred from the position of special agents to the statutory positions of clerks

of class four, three, two, etc., and to the positions of special attorneys and special examiners, the force being the same persons under the new designations as formerly existed under the designation 'special agents.'

"The unexpended balance of the $30,000 appropriated under the urgent deficiency bill was reappropriated under the deficiency bill of April 27, 1904. It is applicable to such special agents in the Bureau of Corporations and for their per diem, subject to such rules and regulations as you may prescribe, at a rate not exceeding $4 per day to each of said special agents while absent from their homes and designated headquarters on duty, and for actual and necessary traveling expenses for said special agents, including necessary sleepingcar fares.

"It therefore appears that this unexpended balance of the $30,000 applies to special agents in the Bureau of Corporations, subject to such rules and regulations as you may prescribe. As a large number of the former special agents are now transferred to and are filling the statutory positions of clerks of class four, three, two, and one, and as it is further desirable that at appropriate and necessary times these men be sent into the field, it is also desirable that a per diem be paid these men out of the appropriation just referred to. I am of opinion that you have the power to alter the distribution of the employees on the statutory roll and detail them as special agents, under the provisions of the Revised Statutes, section 166, page 26, and that any such employee designated as special agent, under a rule and regulation prescribed by you, may draw a per diem not to exceed $4 per day while absent from his home or designated headquarters on duty; and that the act creating the position of special agent and providing for a per diem in lieu of subsistence supersedes and repeals pro tanto the provision relating to actual traveling expenses allowable to any person holding appointment under the United States, appearing in the act of March 3, 1875 (Supp. Rev. Stat., vol. 1, p. 81).

"If this construction is upheld, then no money will be lost from the statutory roll when an employee of that roll is ordered to pursue his duties outside of the District of Columbia, for he will draw his pay from the appropriation covering the statutory place which he holds, and his expenses will be paid from the appropriation relating to the per diem of special agents, he being detailed to act as a special agent by you, and his per diem in lieu of subsistence being therein provided for.

"If this construction is not upheld, the appointment will have to be made as a special agent, and such employee will have to draw from the appropriation relating to special agents not only his per diem but also his pay as a special agent; and the