The draft provides further in paragraph 6 that—

No transportation to or from hospital, or between hospitals in case of transfer, shall be payable by the U. S. Veterans' Bureau, and all transportation and other necessary expenses incident to hospital admission, transfer or in returning patient to his home or other destination, at completion of treatment or on discharge from hospital, must be borne by the patient.

And also in paragraph 8 that

In the event of death of a veteran of the Spanish-American War, Philippine insurrection, or Boxer rebellion under treatment in a hospital as a patient of the U. S. Veterans' Bureau, burial expenses will not be paid by the U. S. Veterans' Bureau.

These provisions are in accordance with legal limitation on expenditures under section 4 of the act of April 20, 1922, and the appropriation of May 11, 1922.

ENLISTED MEN OF NAVY APPOINTED TO PANAMA CANAL
POSITIONS.

In view of the provision in the act of June 30, 1922, 42 Stat., 765, prohibiting the payment from the appropriations therein made for the Panama Canal of salaries in excess of the rate in effect for such positions on June 30, 1921, no additional payment may be made to an enlisted man of the Navy performing service for the Panama Canal during the fiscal year 1923 when his Navy pay equals or exceeds the total salary paid for like service on June 30, 1921.

Comptroller General McCarl to the Governor, Panama Canal, October 2, 1922. I have your letter of September 1, 1922, as follows:

I have the honor to request your decision as to whether the Panama Canal is authorized to employ a naval enlisted man on active duty as an observer at the hydrographic and meteorological station at Punta Mala, Republic of Panama, at a rate of $10.00 per month in addition to the pay received by such observer as an enlisted man in the Navy.

This hydrographic station was established in 1918 following the establishment of a radio station by the Navy Department at Punta Mala. At that time it was determined that the naval force employed at Punta Mala radio station could undertake the work of an observer for the Panama Canal at that point, making daily readings and examination of the instruments and daily reports by radio as to the conditions of wind and weather.

In accordance with the provisions of section 4 of the Panama Canal act (37 Stat., 560) the pay and position of observer at Punta Mala was fixed at $82.00 per month, being $10.00 per month in excess of the rate received by the enlisted man as such in the naval service. This was subsequently increased, so that on June 30, 1921, the pay was fixed at $101.00 per month, of which $91.00 was Navy pay and $10.00 Panama Canal pay. The provision found in the Panama Canal act which authorizes such procedure is as follows:

"If any of the persons appointed or employed as aforesaid shall be persons in the military or naval service of the United States, the amount of the official salary paid to any such person shall be deducted from the amount of salary or compensation provided by or which shall be fixed under the terms of this act." The War Department appropriation act, approved June 30, 1922, making appropriations for the Panama Canal, contains the following language:

No part of the foregoing appropriations for the Panama Canal shall be used to pay the salary for any position at a rate in excess of the rate in effect for such position on June 30, 1921."

At the present time the Navy pay of the enlisted man on duty at Punta Mala, and who is acting as observer for the Panama Canal, is in excess of $101 per month. This limitation found in the appropriation act for 1923 prohibits the increase in salary for any position under the Panama Canal and apparently prohibits increasing the rate for the position to $10 per month in excess of the rate of Navy pay received by the enlisted man on duty at Punta Mala.

Except for the provision found in the Panama Canal act, there is apparently no reason why the compensation for observer might not be fixed at $10 per month and this amount paid in addition to the Navy pay provided the total compensation received by the individual was not in excess of $2.000 per year.

In view of the foregoing facts, your decision is requested as to whether I would be authorized to employ as an observer at the hydrographic and meteorological station at Punta Mala an enlisted man of the Navy and pay him from Panama Canal appropriations $10 per month in addition to the pay received by him as an enlisted man.

The Panama Canal Act of August 24, 1912, 37 Stat., 561, including the portion quoted by you, provides:

• the President is authorized thereafter to complete, govern, and operate the Panama Canal and govern the Canal Zone, or cause them to be completed, governed, and operated through a governor of the Panama Canal and such other persons as he may deem competent to discharge the various duties connected with the completion, care, maintenance, sanitation, operation, government, and protection of the canal and Canal Zone. If any of the persons appointed or employed as aforesaid shall be persons in the military or naval service of the United States, the amount of the official salary paid to any such person shall be deducted from the amount of salary or compensation provided by or which shall be fixed under the terms of this Act. The governor of the Panama Canal shall be appointed by the President, * * *. All other persons necessary for the completion, care, management, maintenance, sanitation, government, operation, and protection of the Panama Canal and Canal Zone, shall be appointed by the President, or by his authority, removable at his pleasure, and the compensation of such persons shall be fixed by the President, or by his authority, until such time as Congress may by law regulate the same, but salaries or compensation fixed hereunder by the President shall in no instance exceed by more than twenty-five per centum the salary or compensation paid for the same or similar services to persons employed by the Government in continental United States.

The above act contemplates that the salary or compensation attached to each position shall be fixed with reference to that paid by the Government for the same or similar services in the United States and not to exceed by more than 25 per cent the amount so paid. If the person appointed or employed to fill one of such positions is in the military or naval service, the amount of his official salary shall be deducted from the salary or compensation fixed under the terms of this act. While the act seems to assume that the salary or compensation attached to a Panama Canal position fixed under the terms of the act will exceed the "official salary" of the person in the military or naval service who may be appointed or employed to fill such position, yet it does not contemplate that the amount should be fixed with reference to the "official salary" of any such person.

The provision quoted by you contained in the War Department appropriation act of June 30, 1922, 42 Stat., 765, making appropriation for the Panama Canal for the fiscal year 1923, has reference to the salary or compensation fixed for each position under the terms of the provision of the Panama Canal act of August 24, 1912, quoted supra, and in effect on June 30, 1921. It prohibits the use of the appropriation for the Panama Canal for the fiscal year 1923 to pay the salary for any position at a rate in excess of the rate for such position in effect on June 30, 1921. In other words, it makes the

salary or compensation fixed under the act of August 24, 1912, for each position which was in effect on June 30, 1921, the maximum salary or compensation which can be paid for such position from the appropriation for the Panama Canal for the fiscal year 1923.

As bearing on the question I have to call your attention to the provision contained in said appropriation act, which after making certain exceptions and with reference to persons employed under the appropriations for the Panama Canal provides:

nor shall there be paid to any such person during that fiscal year (1923) any greater rate of compensation than was authorized to be paid to persons occupying the same or like positions on July 1, 1921,

As the salary for observer at Punta Mala in effect on June 30, 1921, was $101 per month, the appropriation for the Panama Canal for the fiscal year 1923 is not available to pay a salary for said position in excess of that rate, and therefore you are not authorized to pay as observer at Punta Mala a person in the naval service whose official salary is in excess of $101 per month any amount from the current appropriation for the Panama Canal. You are advised accordingly.

SIX MONTHS' DEATH GRATUITY-DESIGNATED AND DEPENDENT RELATIVES OF DECEASED ENLISTED MEN OF COAST GUARD. To entitle a relative, other than the widow or child, of an enlisted man of the Coast Guard to the gratuity of six months' pay upon the death of the enlisted man from wounds or disease, not the result of his own misconduct, in accordance with the act of June 4, 1920, 41 Stat., 824, the relative must show both previous designation by the deceased and dependency in fact upon him for support.

Decision by Comptroller General McCarl, October 2, 1922:

Kate Walsh has requested review of settlement T-91504, this office, dated July 21, 1922, disallowing her claim for $360, representing gratuity of six months' pay on account of the death of her nephew, F. A. Smith, former fireman first class, United States Coast Guard, June 11, 1921, for the reason that dependency in fact was not shown. The record discloses that Albert E. Smith, a brother of the deceased, also claimed the gratuity, whose claim was disallowed by settlement No. T-91505, dated July 27, 1922, for the reason that claimant had not been previously designated by the deceased to receive the gratuity.

The act of June 4, 1920, 41 Stat., 824, provides:

That hereafter, immediately upon official notification of the death from wounds or disease, not the result of his or her own misconduct, of any officer, enlisted man, or nurse on the active list of the Regular Navy or Regular Marine Corps, or on the retired list when on active duty, the Paymaster General of the Navy shall cause to be paid to the widow, and if there be no widow to the child or children, and if there be no widow or child, to any other dependent relative of such officer, enlisted man, or nurse previously designated by him or her, an 989449 0-52-18

amount equal to six months' pay at the rate received by such officer, enlisted man, or nurse at the date of his or her death. The Secretary of the Navy shall establish regulations requiring each officer and enlisted man or nurse having no wife or child to designate the proper dependent relative to whom this amount shall be paid in case of his or her death Provided, That the provisions of this section shall apply to the officers and enlisted men of the Coast Guard, and the Secretary of the Treasury will cause payment to be made accordingly.

The right of a relative to the benefits of this statute, other than a widow or child of the deceased, is conditioned on two requirements; first, that the relative shall have been previously designated by the deceased to receive the gratuity; and, second, that such relative is, in fact, dependent.

The claimant, Kate Walsh, an aunt, was designated August 13, 1920, by F. A. Smith to receive the gratuity, but there has been no evidence submitted indicating that she was at any time dependent on her nephew for support, or that he contributed any share of her living expenses. In a letter requesting review it is contended that dependency is not essential. She is basing her claim not on the fact of dependency but rather on the fact that she is the beneficiary under the will of the deceased. The gratuity does not consist of arrears of pay earned by the deceased during his lifetime and, as such, forming a part of his estate, but is an amount over and above pay due at time of death granted to a dependent; it forms no part of the decedent's estate and its payment is independent of any disposition that may have been made of the estate. In the absence of a showing of dependency Kate Walsh is not entitled to the gratuity. The facts indicate that the other claimant, Albert E. Smith, a crippled brother, was in a measure dependent on decedent for a portion of his living, but, as he was not previously designated to receive the gratuity, payment to him is not authorized.

Upon review of the matter both settlements are sustained.

SUBSISTENCE EXPENSES OF MEMBERS OF TAX SIMPLIFICATION BOARD WHO REPRESENT PUBLIC.

Members of the Tax Simplification Board who represent the public, and who hold positions created by the act of November 23, 1921, 42 Stat., 317, without compensation attached, are officers of the United States, and as such come within the limitations of the act of April 6, 1914, 38 Stat., 318, as to reimbursement of subsistence expenses.

Comptoller General McCarl to the Secretary of the Treasury, October 3,

1922:

I have your letter of the 5th instant wherein you request an opinion as to whether the limitation or reimbursement for subsistence expenses under the act of April 6, 1914, 38 Stat., 318, is applicable to expenses reimbursable to the members of the Tax Simplification Board established in the Department of the Treasury by the act of November 23, 1921, 42 Stat., 317.

The act of November 23, 1921, provides for the establishment in the Department of the Treasury of a board to be known as the Tax

Simplification Board, and provides for the appointment of said board as follows:

(1) Three members who shall represent the public to be appointed by the President; and

(2) Three members who shall represent the Bureau of Internal Revenue and shall be officers or employees of the United States serving in such Bureau, to be appointed by the Secretary.

It is also provided in said act—

The members representing the public shall serve without compensation except reimbursement for traveling, subsistence, and other expenses incurred in the performance of the duties vested in them

The act of April 6, 1914, 38 Stat., 318, provides

On and after July first, nineteen hundred and fourteen, unless otherwise expressly provided by law, no officer or employee of the United States shall be allowed or paid any sum in excess of expenses actuallly incurred for subsistence while traveling on duty outside of the District of Columbia and away from his designated post of duty, nor any sum for such expenses actually incurred in excess of $5 per day; nor shall any allowance or reimbursement for subsistence be paid to any officer or employee in any branch of the public service of the United States in the District of Columbia unless absent from his designated post of duty outside of the District of Columbia, and then only for the period of time actually engaged in the discharge of official duties.

The positions of the members of the Tax Simplification Board who represent the public are expressly created by statute and are offices of honor or trust to which no compensation is attached. The incumbents of said offices are officers of the United States within the meaning of the term "officer of the United States" as used in the legislation limiting the actual traveling expenses or subsistence of such officers in the act of April 6, 1914. 23 Comp. Dec., 372; 89 MS. Comp. Dec., 204.

The question submitted is answered in the affirmative.

You refer to the ruling in the Assay Commission case decided March 15, 1917, 80 MS. Comp. Dec., 1050. I think the case here decided is properly distinguishable from that case. In the Assay Commission case there was no appointment to an office, but only a designation by the President for the person designated to perform a special or particular service at the United States Mint at Philadelphia in accordance with the provisions of section 3547, Revised Statutes. This service is an annual affair to examine and test the fineness and weight of certain coins. The designation there was for the one examination only, and it was considered that the person designated was not an officer or employee of the Treasury Department within the meaning of the travel regulations. In the instant case the position of members of the Tax Simplification Board, representing the public, has all the elements necessary to constitute an office, and the person holding such employment is an officer within the meaning of the act of April 6, 1914, providing for reimbursement of traveling expenses.