preparation being paid from the appropriation for gauging streams and reclamation

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etc. "

Notwithstanding this statement I can see no substantial difference between the question now presented and that decided in 9 Comp. Dec., 808, and there seems to be no more reason for encroaching upon the funds appropriated for specific purposes for the purchase of said lumber than there was in the case in 9 Comp. Dec., 808, for the purchase of book stacks. If not provided for in any one of the appropriations for the office in specific terms they would fall under the general words "and all other necessary expenses" in the appropriation for "General expenses of the Geological Survey." This is evidently the fund intended to be used to meet expenses common to all appropriations and not peculiar to any. (9 Comp. Dec., 808, 810.) There is nothing to indicate that the various appropriations for the Geological Survey made by the act of April 28, 1904 (33 Stat., 485), are intended for use as one fund to pay such expenses as are common to the various appropriations, though not exclusively used to effect the purposes of either of said appropriations.

For the reasons given and for the reasons stated in my decision of June 25, 1903, supra, you are not authorized to grant the authority to pay for the said lumber from the various appropriations of the Geological Survey as requested.

PAY OF OFFICER OF THE IOWA MILITIA WHILE ENGAGED IN THE ENCAMPMENT AND MANEUVERS OF THE REGULAR ARMY.

Under the provisions of section 15 of the act of January 21, 1903, an officer of the Iowa militia with the rank of captain and assistant surgeon which he had received under the laws of Iowa by reason of having previously served five years as first lieutenant and assistant surgeon in the Iowa National Guard, is entitled while participating in the encampments and maneuvers of the Regular Army to the pay of an assistant surgeon with the rank of captain.

(Decision by Acting Comptroller Mitchell, January 9, 1905.) The Auditor for the War Department has submitted the following decision for approval, disapproval, or modification: "Edward L. Martindale, as captain and assistant surgeon, Iowa National Guard, claims the difference between the pay

of a first lieutenant and assistant surgeon, and that of a captain and assistant surgeon, for his services from October 16 to 28, 1903, for participating in the army maneuvers at Fort Riley, Kans.

"The claimant was commissioned a captain and assistant surgeon of the First Iowa National Guard (militia), April 8, 1895, and was mustered out as such May 6, 1898. He was commissioned as a United States volunteer May 6, 1898, as first lieutenant and assistant surgeon, Forty-ninth United States Volunteer Infantry, and was mustered out May 13, 1899. He was recommissioned a captain and assistant surgeon, First Iowa National Guard, April 12, 1900, and has continuously served as an assistant surgeon with the rank of captain since that date. He alleges that he obtained the rank of captain and assistant surgeon under the laws of Iowa, by reason of having previously served five years as first lieutenant and assistant surgeon, Iowa National Guard, and submits his commission as captain and assistant surgeon, and a copy of general order No. 13, adjutant-general's office, State of Iowa, Des Moines, June 5, 1902, which publishes the laws of Iowa pertaining to the militia of the State. In so far as is material in this case that law reads as follows:

666 'Assistant surgeons, for the first five years of commission, shall have the rank of first lieutenant, after which they shall have the rank of captain.`

"It appears that the claimant, under proper orders, participated in the encampment, maneuvers, and field instructions of the Regular Army from October 16 to 28, 1903, both dates inclusive. During that period he appears to have been an assistant surgeon with the rank of captain in the organized militia of the State of Iowa, and was mustered as such on the roll of the Hospital Corps of the Fifty-fifth Iowa National Guard. He was paid, however, for this period, as a first lieutenant and assistant surgeon of the Regular Army.

"The question arises whether, under the provisions of section 15 of the act of January 21, 1903 (32 Stat., 777), the claimant was entitled to the pay of the rank and grade held by him in the organized militia, or the pay of an assistant surgeon, for less than five years service in the Regular Army. The act of January 21, 1903 (32 Stat., 777), provides as follows:

"That the Secretary of War is hereby authorized to provide for participation by any part of the organized militia of any State or Territory, on the request of the governor thereof, in the encampment, maneuvers, and field instruction of any part of the Regular Army at, or near, any military post or camp or lake or seacoast defenses of the United States. In such case the organized militia so participating shall receive the same pay, subsistence, and transportation as is provided

by law for the officers and men of the Regular Army, to be paid out of the appropriation for the pay, subsistence, and transportation of the Army.'

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"Section 4, act of June 23, 1874 (18 Stat., 344), provides: "That the medical department of the Army shall hereafter consist of and 150 assistant surgeons, with the rank, pay, and emoluments of lieutenants of cavalry for the first five years of service, and the rank, pay, and emoluments of captains of cavalry after five years of service.'

"The act of June 23, 1874, creates two ranks in the grade of assistant surgeon and fixes the rate of pay of each rank. While the rank of captain and assistant surgeon in the Regular Army is dependent upon a prior service of five years as first lieutenant and assistant surgeon, it is, nevertheless, an office separate and distinct from that of a first lieutenant and assistant surgeon.

"I am of the opinion, and so decide, that any officer of the organized militia of any State or Territory, lawfully holding the rank and grade of captain and assistant surgeon in such organized militia, is, when participating in the encampment, maneuvers, and field instruction of any part of the Regular Army, as provided in section 15, act of January 21, 1903 (32 Stat., 777), entitled to the same pay as if he were lawfully a captain and assistant surgeon in the Regular Army while so participating."

Upon the facts stated by the Auditor I am of opinion, and so decide, that the officer mentioned in said decision is entitled to receive the pay of an assistant surgeon with the rank of captain from October 16 to 28, 1903. (See decision of the Court of Claims in the case of Eugene Hawkins v. The United States, No. 22396, dated December 20, 1904.)

Any decision of this Office in conflict with these views is reversed.

PAY OF REAR-ADMIRALS OF THE NINE LOWER

NUMBERS.

A rear-admiral of the nine lower numbers is entitled to the old navy pay of a rear-admiral as fixed by section 1556, Revised Statutes. (Decision by Acting Comptroller Mitchell, January 10, 1905.) The Auditor for the Navy Department has submitted for approval, disapproval, or modification the following decision, dated July 18, 1904:

"Rear-Admiral Charles J. Barclay, junior grade, U. S. Navy, has presented to this office a claim for pay as rear

admiral of the Navy, provided by section 1556 of the Revised Statutes, in preference to the rate of pay of a brigadiergeneral in the Army, as fixed by section 7 of the act of March 3, 1899 (30 Stat., 1005), and in accordance with the decision of the Court of Claims in the case of Silas W. Terry v. United States, decided March 28, 1904.

"It appears from the papers on file in this Office that on September 11, 1903, Rear-Admiral Barclay was promoted from a captain in the Navy to a rear-admiral and embraced in the nine lower numbers of that grade. During the entire period of his service as a rear-admiral in the nine lower numbers in that grade, from September 11, 1903, to the present time, he was paid at the rate of pay of a brigadier-general in the Army, $5,500 a year, less 15 per cent for shore duty, $4,675. Section 7 of the act of March 3, 1899 (30 Stat., 1005), provides:

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shall Provided,

"That the active list of the line of the Navy be composed of eighteen rear-admirals, That each rear-admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowances as are now allowed a brigadier-general in the Army.'

"The proviso in the act of June 7, 1900 (31 Stat., 697), amended the act of 1899 in regard to pay of officers of the Navy as follows:

66

'Section 13 of the act approved March 3, 1899, entitled

"An act to recognize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States is hereby so amended as to provide that nothing therein contained shall operate to reduce the pay which, but for the passage of said act, would have been received by any commissioned officer at the time of its passage or thereafter.'

"Under the above proviso the court held that:

"The plaintiff was promoted to the grade of rear-admiral of the nine lower numbers. The pay which plaintiff might have received as a commodore can not be the measure of his compensation, because he is not a commodore. The pay pertaining to that grade has been abolished because the grade of commodore no longer exists. The old navy pay is not applicable to same rank which plaintiff might have attained, but is applicable to his present rank.

"If the equality attempted by the personnel act is disturbed by the act of 1900 the result was one of intention, because the qualification against reduction is manifested by the phraseology that admits of no other conclusion.'

"In 7 Comp. Dec., 162, it was held, quoting from the syllabus:

"Under the provision in the act of June 7, 1900, that nothing in section 13 of the navy personnel act of March 3, 1899, shall operate to reduce the pay which, but for the passage of said act, would have been received by any commis

sioned officer at the time of its passage or thereafter, a captain of the Navy who was promoted on March 29, 1900, to the grade of rear-admiral, and while in the nine lower numbers of that grade constituted by the navy personnel act, is not entitled to the pay of the old grade of rear-admiral under the prior law.'

"It appears from the certificate of the clerk of the Court of Claims in the Terry case that no appeal to the Supreme Court of the United States has been taken by either party from the judgment of the Court of Claims, and that no motion by either party for a new trial, or to amend or correct the finding or judgment, is now pending.

"In view of the fact that no appeal has been taken from the judgment of the Court of Claims in the case of Terry v. United States, I have followed the decision of the Court of Claims in this case, and am of opinion, and so decide, that RearAdmiral Barclay is entitled to the pay provided by section 1556 of the Revised Statutes for a rear-admiral of the Navy."

The above decision is in accordance with that of the Court of Claims in the case of Silas W. Terry v. The United States (No. 22927, March 28, 1904), in allowing to rear-admirals of the nine lower numbers the old navy pay of a rear-admiral as provided by section 1556 of the Revised Statutes.

This office recommended an appeal of the Terry case to the Supreme Court, but the Department of Justice having declined. to follow the recommendation, the decision of the Court of Claims in that case will be followed by this Office in the settlement of pay accounts of rear-admirals of the nine lower numbers.

The decision of the Auditor is therefore approved.

REMOVAL FROM OFFICE OF AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

The provision in section 1864, Revised Statutes, that associate justices of Territorial supreme courts "shall hold their offices for four years, and until their successors are appointed and qualified,” is a limitation upon their term of office and not a restriction upon the President's power of removal.

Where an associate justice of the supreme court of the Territory of New Mexico was removed by the President, and was notified of that fact prior to the subsequent revocation of the order of removal, he thereby ceased to be an officer, and was not entitled to the salary of said office after the receipt by him of said notice, nor did the subsequent revocation of the order of removal operate to reinstate him.