EXPENSES FOR MEALS WHILE ON DUTY AFTER USUAL OFFICE HOURS.

An acting assistant surgeon of the Public Health and Marine-Hospital Service who was detailed, under the act of March 3, 1903, to assist in the inspection of aliens is not entitled to reimbursement of the cost of meals taken while on duty after 6 p. m. at his official station.

(Comptroller Tracewell to W. L. Soleau, disbursing clerk, Department of Commerce and Labor, December 1, 1904.)

In your communication of November 25, 1904, you request my decision of a question which you therein present as follows: "The voucher, in duplicate, submitted by Dr. M. Victor Safford, in the sum of two and forty-five one-hundredths dollars ($2.45), for meals taken October 5, 8, and 22, 1904, while on duty after six o'clock p. m., in connection with the work of inspecting aliens at the immigrant station at Boston, Mass., is transmitted herewith for your decision as to the right of Doctor Safford to be reimbursed for such meals from the appropriation Expenses of regulating immigration.'

Doctor Safford is an acting assistant surgeon in the Public Health and Marine-Hospital Service, detailed to assist in the work of inspecting aliens as provided for by section 17 of the act of March 3, 1903, entitled 'An act to regulate the immigration of aliens into the United States.' Rule 27 of the Immigration Regulations promulgated under this act provides that every officer of the Public Health and Marine-Hospital Service detailed under section 17 of the act approved March 3, 1903, for duty at any port in the United States, shall, during the continuance of such detail, be under the direction (subject to the Public Health and Marine-Hospital Service regulations governing the medical inspection of aliens, as approved by the Secretary of the Treasury November 19, 1902) of the immigration officer in charge of said port."

Section 17 of the act of March 3, 1903 (32 Stat., 1217), provides that the physical and mental examinations of alien immigrants provided for therein shall be made by medical officers of the Marine-Hospital Service, and section 804 of the regulations of the Public Health and Marine-Hospital Service provides for the detail of medical officers of that Service for the purpose of making such examinations. It is understood that Doctor Safford was detailed under these provisions for duty at the immigrant station at Boston, Mass. I am therefore of opinion that this immigrant station must be regarded as his official station while so detailed.

Section 814 of the regulations of the Public Health and Marine-Hospital Service also provides as follows:

"Medical officers and employees of the Public Health and Marine-Hospital Service will be entitled to actual and necessary traveling expenses when inspecting immigrants at other places than at the regular immigrant station. When it is necessary for them to be on immigration duty before or after the customary hours fixed by the Commissioner of Immigration, they will be entitled to payment for meals necessarily taken at other than their regular place of residence."

In the voucher submitted with your communication Doctor Safford claims reimbursement of $2.45 paid by him on October 5, 8, and 22, 1904, for supper on each of those dates, "while on duty after 6 p. m." The Commissioner of Immigration at Boston certifies that the meals charged for in the voucher were taken by him while continuing on duty under his direction after the customary hours of duty fixed by him. The claim is not made for reimbursement of traveling expenses, and no evidence that Doctor Safford was authorized to travel or that he actually performed travel has been furnished. The expense thus appears to be for subsistence at his official station while not traveling. Such an expense is in the nature of additional compensation and is not provided for by law (8 Comp. Dec., 296).

Section 2 of the act of July 1, 1902 (32 Stat., 712), provides as follows:

"That the salary of the Surgeon-General of the Public Health and Marine-Hospital Service shall be five thousand dollars per annum, and the salaries and allowances of the commissioned medical officers of said Service shall be the same as now provided by regulations of the Marine-Hospital Service."

The regulations of the Marine-Hospital Service in force on July 1, 1902, the date of the approval of the above act, were those approved November 29, 1897. Section 70 of these regulations fixed the salaries and allowances of commissioned officers as follows:

"Surgeons shall receive $2,500 per annum; passed assistant surgeons shall receive $2,000 per annum, and assistant surgeons shall receive $1,600 per annum; and after five years' service an additional compensation of 10 per cent on the annual salary for each five years' service shall be allowed commissioned officers above the rank of assistant surgeon; but the maximum rate shall in no case exceed 40 per cent. Said

officers placed on two months shall respective grades."

waiting orders' for a period longer than receive 75 per cent of the pay of their

Section 93 of the regulations also provides for allowance of commutation for quarters when a commissioned officer is serving at a station where there are no quarters belonging to the Service, at rates of $50, $40, and $30 a month, according to the grade of the officer.

The compensation, including allowances, of commissioned officers of the Public Health and Marine-Hospital Service was thus fixed by section 2 of the act of July 1, 1902, supra, at these rates.

Executive officers are not authorized, either by regulations or otherwise, to increase or diminish the compensation of an officer, where his compensation is fixed by statute. In United States v. Williamson (23 Wall., 411, 416) the Supreme Court said:

"It is not in the power of an executive department, or any branch of it, to reduce the pay of an officer of the Army. The regulation of the compensation of the officers of the Army belongs to the legislative branch of the Government.”

It is also true in respect to civil officers of the Government. In Adams v. United States (20 Ct. Cl., 115, 117) the court said:

"The law creates the office, prescribes its duties, and fixes the compensation. The selection of the officer is left to the collector and secretary. The appointing power has no control bevond the limits of the statute over the compensation, either to increase or diminish it."

A regulation which operates to increase the compensation of an officer, where his compensation is fixed by statute, is not in conformity with law, and it is therefore unauthorized. In United States v. Symonds (120 U. S., 46, 49) the Supreme Court said:

"But Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer's compensation, as established by law, by declaring that to be shore service which was, in fact, sea service, or to increase his compensation by declaring that to be sea service which was, in fact, shore service. The authority of the Secretary to issue orders, regulations, and instructions, with the approval of the President, in reference to matters connected with the naval

establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the Navy. He may, with the approval of the President, establish regulations in execution of, or supplementary to, but not in conflict with, the statutes defining his powers or conferring rights upon others."

I am therefore of opinion that Doctor Safford is not entitled to reimbursement for the cost of his subsistence while on duty at his station, and that you are not authorized to pay the voucher therefor submitted by you.

RATE OF EXCHANGE.

The rate of exchange fixed by the bankers' commission, appointed under the protocol of September 7, 1901, to receive and distribute payments of indemnity by China to the allied powers on account of the Boxer disturbances, is not binding between the United States and its agent in the settlement of the accounts of said agent for indemnity collected by it.

The accounts of the International Banking Corporation, agent of the United States in the collecting of the indemity to be paid by China on account of the Boxer disturbances, for moneys collected by it as such agent should, under its contract, be settled on the basis of the actual exchange value in United States gold of a Shanghai tael in Shanghai on the day such accounting is to be made, and not upon the basis of the commercial value of silver in London on said day.

(Decision by Comptroller Tracewell, December 3, 1904.)

The International Banking Corporation of New York appealed, February 10, 1904, from the action of the Auditor for the State and other Departments in the settlement of its accounts evidenced by supplementary certificate dated September 24, 1903, by which settlement a balance of $11,526.07 was found due the United States from said International Banking Corporation on account of the collection by it of 900,391.64 Shanghai taels, being the first semiannual installment of interest received from the Chinese Government due on the 1st day of July, 1902, and for interest deferred on said instalment, due and unpaid until that time.

Under the terms of a protocol entered into between the Chinese Government and the eleven Powers, including the United States, the Empire of China agreed to pay to these

powers a certain indemnity growing out of the Boxer uprising in the summer of 1900.

China, by this protocol which was entered into on the 7th of September, 1901, agreed to pay to these Powers, through a bankers' commission afterwards to be appointed, 450,000,000 haikwan taels, such sum to represent the total amount of the indemnity. That said 450,000,000 haikwan taels were to constitute a gold debt, and, in so far as the United States are concerned, calculated at the rate the haikwan tael bore to the gold dollar of the United States. The rate of such haikwan tael to the gold dollar of the United States was therein fixed at $0.742. That said 450,000,000 haikwan taels, calculated as aforesaid in gold, was to bear 4 per cent interest per annum, and the capital or principal of the indemnity should be paid by China in thirty-nine years in the manner set out in annex 13 to said protocol. That the principal and interest of such indemnity should be paid in gold, or at the rates of exchange corresponding to the dates at which the different payments fell due.

The service (using the language of the protocol, English translation) of the debt, that is, the collection and payment of the interest on the indemnity and the partial payments on the principal, called amortization, as they yearly fall due, is provided for in the following language:

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"(b) The service of the debt shall take place in Shanghai, in the following manner:

"Each power shall be represented by a delegate on a commission of bankers authorized to receive the amount of interest and amortization which shall be paid to it by the Chinese authorities designated for that purpose, to divide it among the interested parties, and to give a receipt for the same.

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"(d) The proceeds of the revenues assigned to the payment shall be paid monthly to the commission."

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It is further provided that each of these Powers shall be represented by a delegate on this commission of bankers, who shall be authorized to receive the amount due such Powers of interest and amortization, which amounts, however, are not fixed by the protocol but were afterwards fixed by the Powers. The interest of the United States in this indemnity was fixed at 7.31979 per cent of the gross amount of the indemnity.