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as this property would be greatly damaged in value if not allowed to connect with the sewer I recommend the payment of this assessment.
The act of April 28, 1904 (33 Stat., 465), contains an appropriation which provides as follows:
“For custody, care, protection, and expenses of sales of lands and other property of the United States, the examination of titles, recording of deeds, advertising, and auctioneer fees, four hundred dollars."
In 1 Comp. Dec., 301, it was held that an appropriation in the same terms was applicable to the payment of taxes due at the time of purchase on land bought in by the United States to satisfy a judgment; and in 1 Comp. Dec., 356, it was held that it is also applicable to the “cancellation of liens for taxes existing when the property was bid in by the United States." I think therefore the appropriation is applicable to the payment of the claim now presented if the claim is one payment of which is authorized.
It is well established that neither a State nor the local authorities of a State has authority to impose a tax upon property of the United States, although located therein. (2 Comp Dec., 375; 4 id., 116; 9 id., 181; Van Brocklin v. State of Tennessee, 117 U.S., 168, Wisconsin R. R. Co. v. Price Co., 133 U. S., 504.)
In 4 Comp. Dec., 116, it was also held that the United States is not liable for an assessment levied by local authorities in a State, although such so-called assessment was in the nature of a request for partial reimbursement of the cost of constructing a sewer which had been extended by the local authorities at the request of the Government, in order that connection therewith might be made of drains from property of the United States, which would thus be benefited by the use of the sewer.
Such assessments on property for local improvements are usually involuntary exactions, and in that respect stand on the same footing with ordinary taxes. (Hagar v. Reclamation District, 111 U.S., 706.) And as such the United States is not liable for them, because its property is exempt from taxation by a State.
If claim were made for payment for the privilege of using the sewer of the city a different question would be presented.
But the demand of the tax collector in the case now presented is for the payment of theʻassessment made by the city of Atlanta. This is not a valid demand against the United States, and it can not be paid.
The action of the Auditor is affirmed.
EXPENSES FOR MEDICAL ATTENDANCE.
There is no provision of law authorizing payment of the expenses of a
member of the crew of a vessel of the Light-House Service while in a hospital. (Comptroller Tracewell to the Secretary of Commerce and
Labor, April 18, 1905.) In your communication of April 10, 1905, you request my decision of a question which you therein present as follows:
“In transmitting herewith copies of correspondence between the Light-House Board and the Department, relative to the Board's recommendation that authority be granted to pay the bill submitted by St. Luke's Hospital, New Bedford, Mass., in the sum of $20, for treatment rendered to John P. Senna, a member of the crew of the tender Azalea, who accidentally lost three fingers while in the performance of duty on board the vessel, I have the honor to request an expression of your opinion as to whether or not the expense of paying the account of the hospital named can be properly charged.to the appropriation under which the Azalea was employed at the time the accident occurred."
Treasury Department Circular No. 77, of 1875, provides that
"Sick and disabled seamen employed on vessels of the Light-House Service will be admitted to the benefits of the Marine-Hospital Service upon application of their respective commanding officers."
It is understood that this regulation bas not been modified since the transfer of the Light-House Service to your Department.
Section 460 of the Regulations of the Public Health and Marine-Hospital Service also provides as follows:
“Officers and crews of the several vessels belonging to the Light-House Establishment, including light-ships, may be admitted to the benefits of the Public Health and Marine
Hospital Service upon the application of their respective commanding officers. No charge will be made for care and treatment.”
Where the compensation of an officer or employee is not fixed by law, but the amount thereof is within the discretion of the head of the Department, provision may be made in the contract of employment, as a part of compensation, for medical and surgical attendance in case of sickness occurring or of injury received while in the performance of duty. But in the absence of such provision in the contract, or of provision therefor by law or by regulations in conformity with law, the Government is under no legal obligation to furnish or pay for such attendance upon sick or disabled officers or employees. (8 Comp. Dec., 296.)
The regulations quoted supra provide for medical and surgical treatment by the Public Health and Marine-Hospital Service of the officers and seamen of vessels of the LightHouse Service free of charge. But these regulations do not provide for or authorize the procurement of or payment for medical or surgical attendance or treatment of such officers or employees by private physicians or hospitals, or in any other manner than that specifically provided for therein.
I have the honor therefore to advise you that payment of the bill of the St. Luke's Hospital for treatment of the injured seaman mentioned is not authorized.
FEES OF CLERKS OF COURTS FOR MAKING COM
Where a district court made an order directing the clerk to include com
missioner's transcripts in making up complete records in criminal cases, and subsequently made another order specifying what papers should be included in complete records and omitted commissioners' transcripts, such latter order will be regarded as having superseded the former one, and the clerk will not be entitled to folio fees for such transcripts in final records made subsequent to the making of the last order.
(Decision by Comptroller Tracewell, April 19,
1905.) On March 20, 1905, the Attorney-General filed his request for the revision of so much of the account of Jay E. Pickard, clerk of the United States district court, fourth district of
Oklahoma, for the half year ending June 30, 1904, as was finally settled by the Auditor for the State and other Departments, per certificate dated January 13, 1905.
The facts and grounds upon which revision is asked are set out by the Attorney-General as follows:
"In the examination by this Department of the account of Jay E. Pickard, clerk, district court, fourth district of Oklahoma, for the half year ended June 30, 1904, charges for recording commissioner's transcripts in the final records, amounting to $124.50, were deducted in item 37, for the reasons therein set forth, and also on the authority of U. S. v. King (147 U. S., 676).
“ Said clerk upon request by this Department to state by what authority he made final records, submitted a copy of the rule or order of court set forth on page 2 of explanations to suspensions by the Auditor for the State and other Depurtments, which rule or order was made by Judge Hainer, the present judge, on June 28, 1899, and does not require that such papers be made a part of the final records. Notwithstanding the clerk had submitted a copy of said rule to this Department as authority by which he made final records, he, in explanation to the suspension of said charges by the Auditor, submitted the rule or order of court set forth on page 3 of said explanations Said last-mentioned rule or order was made by Judge Bieber, the predecessor of Judge Hainer, over tive years prior to the rule or order made by said last-named judge. It is contended that the order of Judge Hainer should be considered as a substitute for that made by Judge Bieber, and therefore that Judge Hainer's order was the only one in force as to tinal records when the services charged for in said account were rendered. Said order of Judge Hainer specifically enumerates the papers and proceedings which shall be copied in the final record and does not provide that commissioners' transcripts shall be so copied therein; therefore their incorporation in said final record, under the authorities cited, is unauthorized."
The order of Judge Bieber was passed at the May, 1899, term of the district court for "P" County, now Noble County, and reads as follows:
“ It is ordered by the court that the clerk make complete records in all United States cases commencing with commissioner's transcript."
The order of Judge Hainer reads as follows:
“Now on this 28th day of June, 1899, the same being a regular day of the May, 1899, term, it is by the court ordered that
the clerk of said district court shall keep in each of the sereral counties of said fourth judicial district a criminal final record book in a permanent form, in which he shall record in all United States cases the indictments, informations, warrants, recognizances, judgments, and other orders and pro ceedings in prosecutions for violations of the criminal laws of the United States."
I agree with the Attorney-General's contention that the latter order is a substitute for the former, and commissioners' certificates not being required by its terms to be made a part of complete records, the clerk was without authority to so include them (United States v. Taylor, 147 U. S., 695), and his charges of folio fees were unauthorized by law; therefore the Auditor's allowances thereof are 'overruled.
Upon examination it is found that the true amount charged by the clerk and allowed by the Auditor was $124.80, instead of $124.50. Consequently the sum of $124.80 will be disallowed on this revision.
SERVICE OF SUBPENA OUTSIDE THE DISTRICT
Under the provisions of section 876, Revised Statutes, a deputy marshal is
not entitled to fees or expenses for serving subpænas in civil actions in which the United States is plaintiff when the witness lives out of the district where the subpæna was issued and more than 100 miles from the place of holding court.
(Decision by Comptroller Tracewell, April 19, 1905.) John F. Horr, United States marshal for the southern district of Florida, appealed from the settlement of the Auditor for the State and other Departments, dated December 21, 1904, of his account for salaries, fees, and expenses for the quarter ended March 31, 1904, in the disallowance of charges by field deputies for fees and expenses for serving subpenas in civil actions in which the United States is plaintiff when the witnesses lived out of the district in which court is held and more than 100 miles from the place of holding court. (See sec. 876, Revised Statutes, and 7 Comp. Dec., 812.)
The facts are that five subpenas for seventeen witnesses were issued out of the court for the southern district of Georgia