REFUNDMENT OF MONEYS ERRONEOUSLY COVERED INTO THE TREASURY TO THE CREDIT OF THE CHIPPEWA INDIAN FUND.

There is no provision of law authorizing the refundment of moneys erroneously received from the sale of timber on the Chippewa Indian lands and covered into the Treasury to the credit of the permanent Chippewa Indian fund created by the act of January 14, 1889. The provision in section 3689, Revised Statutes, for the refundment of moneys erroneously received and covered into the Treasury, applies only to moneys covered into the Treasury to the credit of the general fund, and does not authorize the refundment of moneys erroneously paid into the Treasury to the credit of any other fund.

(Decision by Assistant Comptroller Mitchell, December 15, 1904.)

The Auditor for the Interior Department has reported for approval, disapproval, or modification a decision making an original construction of a statute as follows:

"Section 2 of the act of June 27, 1902 (32 Stat., 401), amending section 5 of the act of January 14, 1889 (25 Stat., 644), provides for the sale, cutting, and removal, upon sealed bids, of certain pine timber on the ceded Chippewa lands in Minnesota, and payment therefor.

"Section 5 of the act of June 27, 1902, supra (32 Stat., 401), provides:

The parties bidding shall accompany each said sealed bid with cash or certified check for twenty per centum of the amount of the bid for the pine timber on any particular section or groups, according to the highest value as shown by the Government estimate as hereinbefore provided for, and said cash or certified check shall be retained and credited as part payment of the purchase price should the bid be accepted.'

"Section 7 of the act of 1889, supra (25 Stat., 645), amended by section 3 of the act of 1902, supra (32 Stat., 404), provides that the net proceeds of the sale of timber as provided in section 2 of the act of June 27, 1902, supra, shall

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"be placed in the Treasury of the United States to the credit of all the Chippewa Indians in the State of Minnesota, as a permanent fund which shall draw interest at the rate of five per centum per annum, payable annually for the period of fifty years, * provided, That Congress may in its discretion from time to time during the said period of fifty years appropriate for the purpose of promoting civilization and self-support among the said Indians a portion of said principal sum not exceeding five per centum thereof.'

"Article 1, section 9, paragraph 7, of the Constitution of the United States reads as follows:

"No money shall be drawn from the Treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.'

"On December 5, 1903, the Brainerd Lumber Company, of Minneapolis, Minnesota, purchased a quantity of timber under the provisions of section 2, of the act of June 27, 1902, supra, and deposited under the provisions of section 5, of the act of 1902, supra, with their bid for the same, certified checks payable to the order of the Secretary of the Interior aggregating $3,704.30, being twenty per cent of the estimated value of the timber purchased.

"The proceeds of these checks were collected and placed in the Treasury of the United States to the credit of the said. permanent fund, as required by law.

"The said lumber company also paid to the United States Indian agent at Leech Lake Indian Agency, Minnesota, February 1, 1904, $5,329.32; March 1, 1904, $9,550.03; April 7, 1901, $3,904.30, and June 23, 1904, $47.30; in all, $18,830.95, being the full price for all the timber purchased by them, which total sum was also deposited and carried to the credit of the said permanent fund.

"Thus it will appear that the sum of $3,704.30 has been erroneously collected from the said company and placed in the Treasury to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund," etc.

"Under the constitutional provision, supra, requiring a regular statement and account of the receipts of all public money, the Secretary of the Treasury, in such statements, annually, has included the money constituting the said permanent fund.

"On September 27, 1904, there was received in this office, with the approval of the Acting Commissioner of Indian Affairs, a claim in favor of the Brainerd Lumber Company for $3,704.30, for refundment of the twenty per cent deposit which accompanied their bid for the estimated quantity of timber purchased.

"An examination of the claim of the said lumber company shows that there has been collected, erroneously, from them. the sum of $3,704.30, which sum has been placed in the Treasury of the United States to the credit of the said permanent fund.

"I hold that the said sum of $3,704.30, so erroneously collected and placed in the Treasury as aforesaid, is in the Treasury within the meaning of that clause of the Constitution of the United States which provides that 'No money shall be drawn from the Treasury but in consequence of appropriations made by law.'

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"I also hold that this case does not come within any of the provisions of section 3689 of the Revised Statutes, making permanent annual appropriations for purposes therein specified.

"Therefore, as there is no appropriation made by law from which this claim of the Brainerd Lumber Company can be paid, I hold and so decide that I am now without authority to certify the said claim to the Secretary of the Treasury for payment."

There can be no doubt that the sum of $3,704.30, referred to by the Auditor, was erroneously paid into the Treasury to the credit of the permanent fund for the Chippewa Indians in the State of Minnesota, and if it can legally be refunded to the depositor, the Brainard Lumber Company, of Minnesota, this should be done. But I am not aware of any pro- . vision of law for the refundment of moneys so erroneously paid into the Treasury to the credit of such permanent fund, or of any appropriation from which such refundment can be paid.

Section 3689 of the Revised Statutes contains a permanent annual appropriation which might be thought to be applicable to this case. But I think it is not. The terms of this appropriation are as follows:

"Refunding moneys erroneously received and covered: To refund moneys received and covered into the Treasury before the payment of legal and just charges against the same."

This appropriation has reference to moneys which have been covered into the Treasury to the credit of the general fund, and I think, therefore, it does not authorize refundment from such general fund of moneys that have been erroneously paid into the Treasury to the credit of any other fund. If such refundment were made in this case, the general fund of the Treasury would be depleted to the amount of the moneys so refunded, while the permanent fund for the Chippewa Indians would still retain that amount.

Moreover, the appropriation for refundiug moneys erroneously received and covered, supra, is placed in the Revised Statutes under the heading, "Under the Treasury Department," and therefore has reference only to moneys received on account of the Treasury Department.

The decision of the Auditor is approved.

COMPUTING PAYMENTS OF ANNUAL COMPENSATION FOR A FRACTIONAL PART OF A MONTH.

A railway-mail clerk of class 1, at $800 per annum, who was transferred to class 2 at $900 on the last day of a 31-day month is entitled to pay for said month at the rate of $800 per annum for thirty days and $900 per annum for one day, provided no other person held the $900 position for the first thirty days of said month.

(Comptroller Tracewell to the Postmaster-General, December 16, 1904.)

In your communication of December 14, 1904, you request my decision of a question which you therein present as follows:

"Under date of October 10, 1904, Lamont V. Manwell, a railway postal clerk of class 1 at $800 per annum, was transferred from the Monett and Fort Worth railway post-office to the line between Worcester and Elreno, vice Golden L. Martin transferred. Mr. Martin was a clerk of class 1 at $800 per annum. These transfers were made effective with October 24, and under date of October 31, Manwell's probationary appointment having expired, he was given a permanent appointment in class 2 at a salary of $900 per annum.

"The postmaster at Elreno, Okla., claims that as Mr. Manwell was paid for the month of October thirty days, he could not be paid for October 31. The postmaster at Elreno makes request, through the Railway Mail Service, to be advised as to whether he has authority to pay Mr. Manwell for one day, October 31, at the rate of $900 per annum, in class 2, having already paid him for thirty days in October at the rate of $800 per annum in class 1, and I will be pleased to have you render a decision in the matter."

The question is whether Mr. Manwell, who served as a postal railway clerk of class 1, at $800 per annum, from October 1 to 30, 1904, for which he was paid thirty days' pay, being the full amount of pay for the month, and who on October 31 was appointed a railway postal clerk of class 2, at $900 per annum, is entitled to one day's pay for his service on that day. It is also understood that Mr. Manwell was not appointed in the place of any other person who had served as postal railway clerk at $900 per annum during the preceding portion of the month of October.

Under the above state of facts the postmaster is authorized to pay Mr. Manwell for the 31st day of October.

TIME OF TAKING EFFECT OF AN APPOINTMENT.

A certificate of appointment containing a provision that the appointment should be operative from a prior date, and also reciting that the actual appointment was made on said prior date, and that the appointee has since performed the duties of the position to which appointed, will entitle the appointee to compensation for the period intervening between the time of his actual appointment and the date on which the certificate was made out and signed.

(Comptroller Tracewell to the Secretary of Commerce and Labor, December 19, 1904.)

I am in receipt of your letter, dated December 13, 1904, wherein you request my decision as follows:

"Your decision is requested as to whether an appointment certificate evidencing an appointment which has already taken effect at the time the certificate is issued may be dated as of the date when actually signed, provided the certificate itself shows and recognizes that the appointee entered on duty on the date upon which the certificate indicates that the appointment became effective.

"It is quite often necessary to issue an appointment certificate in a case where the appointee has actually entered on duty prior to the earliest date upon which it is possible, or is found practicable, to issue the necessary certificate.

"To require that the certificate in such a case shall be dated not later than the date upon which the appointment takes effect would seem (1) to require the head of the Department to perform a technically impossible act, namely, to sign an appointment certificate on a date prior to that upon which it is presented to him for signature; (2) to place him in the position of not being able to state on what date he actually signed the certificate, should he in fact sign as of a date prior to that on which he actually does sign; (3) to render the date appearing at the top of the tissue of an appointment certificate (which tissue is the most reliable official record of the issuance of a certificate, and is used as the basis for subsequent records and reports) valueless as an index of the date on which the certificate was actually issued.

"The following is a general outline of the form of appointment now used in the Department:

of

at a salary of

effect

is hereby appointed in thedollars per this appointment to take

"Secretary.