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Traveling-Allowances of United States Marshals.

In the case of a guard so employed, his compensation, actually and necessarily paid, constitutes, as well as his traveling-expenses, a part of the actual traveling-expenses of the marshal, within the meaning of the law.

DEPARTMENT OF JUSTICE,

September 30, 1874.

SIR: I have attentively considered your communication of the 14th instant to the Attorney-General, in which, in connection with the opinion of this Department addressed to your self, dated August 29, 1874, (see ante, p. 681,) you ask the following questions:

1. Whether mileage to marshals for each necessary guard, while transporting prisoners, as provided by the act of February 26, 1853, is superseded by the proviso in the act of June 16, 1874; and, if so,

2. Whether marshals are authorized to include in their accounts for expenses such compensation as may be actually and necessarily paid to guards so employed, in addition to the traveling-expenses of the guards.

I see no way of avoiding the conclusion that the comprehensive expression in the Army appropriation act of June 16, 1874, in relation to mileage, applies as well to the mileage heretofore allowed to marshals on account of guards and prisoners transported by them, (Rev. Stat., sec. 829,) as to any other whatever. The effect of this is to confine marshals to their actual traveling-expenses allowed in the same section and also in the proviso.

It is the actual traveling-expenses of the marshal that are provided for. If a marshal, while traveling in the discharge of official duty, finds it necessary to employ a guard, I am of the opinion that, within the statute referred to, his compensation, actually and necessarily paid, is, as well as his traveling-expenses, a part of the actual traveling-expenses of such marshal.

Very respectfully, your obedient servant,

S. F. PHILLIPS,

The SECRETARY OF THE TREASURY.

Approved September 30, 1874:

Solicitor-General.

GEO. II. WILLIAMS.

INDEX.

ACCOUNTS AND ACCOUNTING-OFFICERS.

1. The act of March 30, 1868, chap. 36, authorizes the head of a
Department before signing a warrant for any balance certified by
a Comptroller, to submit to the latter any facts which in his
judgment affect the correctness of such balance; but it makes the
decision of the Comptroller thereon final and conclusive upon the
executive branch of the Government, and subject to revision by
Congress or the proper courts only. Page 65.

66

2. The provision of the 4th section of the act of August 16, 1856, chap.
124, declaring that, as to the accounts of marshals, district attor-
neys, &c., an appeal shall lie from the decision of the account-
ing-officers to the Secretary of the Interior," was impliedly
repealed by the act of March 30, 1868, chap. 36. 104.

3. Prior to the act of 1856 there was no law authorizing an appeal in
such cases to the Secretary of the Interior, and none was enacted
subsequent to the act of 1868 down to the act of June 22, 1870,
chap. 150, by which only such powers as were then exercised by
the Secretary of the Interior over the accounts aforesaid were
thereafter to be exercised by the Attorney-General. Ibid.

4. No statute has been passed since the last-mentioned act, giving an
appeal from the accounting-officers to the Attorney-General in
the cases referred to; and hence, under the existing law, such an
appeal does not lie. Ibid.

5. A settlement was made by the accounting-officers of the Treasury
with F., as assignee of certain parties, for the use and occupation
of some buildings by the military authorities, whereupon he was
paid the amount allowed. Subsequently another settlement was
made with him, as assignee of certain other parties, for the use
and occupation of other buildings by the same authorities,
wherein, it having in the mean time been ascertained that the
allowance on the first settlement was improper, and made in
ignorance of a fact which, had the accounting-officers been cog-
nizant thereof at the time, would have precluded such allowance,
the amount paid as aforesaid was deducted, and only the balance
remaining after the deduction allowed: Held that, notwithstand-
ing the claims originally belonged to and were derived by assign-
ment from different persons, it was competent to the accounting-
officers, under the circumstances, to make a deduction in the last
settlement of what had been improperly allowed and paid on the
first.

412.

See COMPENSATION, 9; EIGHT-HOUR LAW, 3.

ADVERTISEMENTS.

1. The proviso in the act of March 3, 1875, chap. 128, making appropria-
tions for the service of the Post-Office Department, was intended
to relieve the heads of all the Executive Departments from the
requirements of section 3826 of the Revised Statutes respecting
the publication of advertisements, notices, and proposals for Vir-
ginia, Maryland, and the District of Columbia, as well as to pro-
vide specifically respecting the publication of mail-lettings by the
Postmaster-General for the States and District above mentioned.

576.

2. It is, accordingly, left discretionary with each head of Department
whether he will make the publication referred to in that section
in one or more papers of the District of Columbia. 577.
See PRIVATE LAND-CLAIMS, 5, 6.

ALABAMA.

See GRANT, 13.

ALASKA.

1. The buildings in Alaska, consisting of warehouses, store-houses,
blacksmith-shops, cooper-shops, fish-houses, dwelling-houses, &c.,
purchased by Hutchinson, Kohl & Co. from the Russian-American
Company in March, 1868, were not included in the cession made
by Russia to the United States in the treaty of March 30, 1867,
and did not become the property of the latter under that treaty.
302.

2. But the Russian-American Company never had anything more than
the use of the land on which its buildings stood-the dominium
or right of property therein, ever remaining in the government
of Russia; and by the 6th article of the treaty the right of pos-
session, use, and all other privileges which that company then
enjoyed in the soil, were in effect extinguished; so that the
United States acquired under the said cession the absolute pro-
prietorship of all the lands on which the establishments of that
company were located, and as a consequence the latter could
occupy such lands thereafter only by the sufferance of the Gov-
ernment of the United States. 303.

3. Hence, although the ownership of the buildings referred to may be
in Hutchinson, Kohl & Co., under their purchase from the Russian-
American Company, they acquired no interest whatever in the
soil by the purchase of such buildings; they are simply occupants
of the public domain, without right or title, and at the sufferance
of the Government. Ibid.

4. By the act of March 3, 1873, chap. 227, the introduction of spiritu-
ous liquors or wine into the Territory of Alaska, unless authorized
by the War Department, is absolutely prohibited. 327.

5. By virtue of the acts of February 13, 1862, chap. 24; March 15, 1864,
chap. 33; and March 3, 1873, chap. 227, the War Department is
clothed with a discretionary authority over the introduction of

ALASKA-Continued.

spirituous liquors or wines into the Territory of Alaska, and may
permit such articles to be taken there, whether they are or are
not intended for the use of officers or troops in the service of the
United States. 401.

6. The first of these acts, though in form an amendment, is really a
substitute for the whole of section 20 of the act of June 30, 1834,
chap. 161, and nothing of said section not contained in that act is
left in force.

APPEAL.

Ibid.

See ACCOUNTS AND ACCOUNTING-OFFICERS, 2, 3, 4.

APPOINTMENT.

See ARMY, 4, 8, 9, 10, 12, 16, 19, 20, 21.

PPROPRIATIONS.

1. The appropriations made by the acts of June 15, 1864, chap. 124, and
March 3, 1865, chap. 81, “for supplies, transportation, and care of
prisoners of war," are in terms applicable to none but prisoners of
41.

war.

2. By the words, "prisoners of war," as used in those acts, are meant
persons of the enemy who are captured and detained by our forces;
and therefore Union soldiers who were captured by the rebels and
afterward escaped or were paroled are not within the scope of the
appropriations mentioned. Ibid.

3. Accordingly, where persons of the latter description were supplied
with necessaries of life and otherwise aided by a private party,
who presents a claim against the Government for re-imbursement
of his outlays and compensation for his services: Held that the
claim, however meritorious it may be, cannot be paid out of either
of those appropriations. Ibid.

4. By act of March 3, 1871, chap. 113, an appropriation was made to
meet (inter alia) the expense of publishing specifications and draw-
ings required by the Patent-Office during the year ending June 30,
1872; the appropriation was to be disbursed by the Superintend-
ent of Public Printing, under whose direction the execution of the
work mentioned was then placed; but by the act of March 24, 1871,
chap. 5, the Joint Committee of Congress on Printing was au-
thorized to transfer the direction of the work to the Commissioner
of Patents, should it be deemed expedient to do so, and on the
16th of June, 1872, such transfer was made: Held that, notwith-
starding the transfer of the direction of the work, the appropria-
tion was still applicable to the payment of expenses incurred in
its prosecution, and might therefore be employed by the Super-
intendent of Public Printing in payment of work done under
the direction of the Commissioner of Patents; yet held, also, that un-
der section 5 of the act of July 12, 1570, chap. 251, the appropriation,
laving been made specifically for the fiscal year ending June 30,
1872, was only applicable to expenses incurred during that year,
or to the fulfillment of contracts made within the same period. 58.

APPROPRIATIONS-Continued.

5. The expenditure of the appropriation provided by the act of June
10, 1872, chap. 416, "for continuing the work on the canal at the
Falls of the Ohio River," whether made with or without the consent
of the Louisville and Portland Canal Company, will not affect
any rights which the latter may now have as to tolls.

90.
6. The direction of the entire work on the new State, War, and Navy
Department building, and the disbursement of the appropriations
provided therefor, are by law devolved upon the Secretary of
State. 409.

ARKANSAS.

1. Review of the respective claims of Elisha Baxter and Joseph
Brooks-each of whom having made application for Executive
aid to suppress an insurrection in Arkansas-to be recognized
by the President as governor of that State. 391.

2. Upon consideration of the constitution and laws of the State, the
decisions of its highest judicial tribunal, and the actual deter-
mination of the controversy between those parties by the gen-
eral assembly of the State, which, according to the rulings of
the said tribunal, had exclusive jurisdiction of the matter in con-
troversy: Advised that Elisha Baxter be recognized by the Presi-
dent as the lawful governor of the State. Ibid.

3. The act of December 13, 1872, chap. 2, does not require interest on
overdue coupons of the bonds of the State of Arkansas, then
held by the United States as Indian trust-funds, to be exacted by
the Secretary of the Interior, in the "arrangement" to be made
by the State mentioned in the proviso of the 1st section of that
act. 611.

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1. Vacancies created in the Quartermaster's Department by the act of
July 28, 1866, chap. 299, from above the rank of assistant quar-
master to that of colonel, were required to be filled by promo-
tion according to seniority, except in case of disability or other
incompetency. 2.

2. The Army Regulations of 1863, in regard to promotions in the Army,
have, by virtue of section 37 of the said act, the force of law.
Ibid.

3. The words "all vacancies," used therein, cannot be rightfully con-
strued to apply to vacancies occurring in a particular way only,
but they include a vacancy that arises on the creation of a new
office as well as one that happens by the resignation or death of
an incumbent. Ibid.

4. By section 17 of the act of July 28, 1866, chap. 299, there were
allowed in the Medical Department of the Army one chief medi-

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