But in construing said orders notice must be taken of the fact that under the provisions of section 4, act of April 22, 1898, supra, and section 15, act of March 2, 1899, supra, the members of the Volunteer Army who entered the service under the act of April 22, 1898, and amendments thereof, became entitled to their discharge on April 11, 1899.

The fact that the exigencies of the service made it necessary to hold some of them to service to a later date, as soldiers have frequently been held in cases of emergency beyond the full term of their enlistment, did not abrogate their legal right to a discharge on the date of the close of the war with Spain.

Section 1, act of January 12, 1899, supra, requiring the dis charge of all officers and enlisted men from the volunteer service, as far as practicable, to be made at camps within the limits of the United States must also be considered.

Whether it was practicable to discharge any particular soldier within the limits of the United States, or more for the interests of the Government to discharge him at the place where he was serving, was left by the act to be determined by the Secretary of War, and "public events of great public interest and widespread notoriety," of which notice must be taken (16 Ct. Cl., 121; 3 How., 24), which made it most desirable to induce as many trained and acclimated soldiers as possible to remain in the islands where they had been serving, support the conclusion that in issuing General Orders, No. 54, supra, the Secretary of War considered primarily the interests of the Government and not the convenience of the soldier.

For the reasons above stated I am of the opinion that the officers and soldiers who on or after April 11, 1899, were discharged under the provisions of said General Orders, No. 54, are to be regarded as having been discharged as a matter of right and not for their own convenience, and that they are therefore entitled to traveling allowances in kind or the commutation as provided in sections 12-9 and 1290, Revised Statutes.

The rights of a volunteer soldier discharged on or after April 11, 1899, under General Orders, No. 54, and of a Regular Army soldier discharged by reason of expiration of term, whether his enlistment was for the war only or an enlistment for three years, in respect to traveling allowances, are the same; and they are not affected by any subsequent inducements held out to secure his reenlistment, nor by the interval which elapses between his discharge and his reenlistment, except so far as

his right may be affected by the cancellation of orders for transportation and subsistence furnished, which, as hereinbefore stated, may be done by orders of the Secretary of War when in his judgment the interests of the service may require it.

EXTRA PAY TO SOLDIERS DISCHARGED UNDER GENERAL ORDERS, NOS. 40 OF 1898 AND 54 OF 1899.

Soldiers belonging to volunteer organizations who were discharged at the close of the war with Spain under General Orders, No. 54, of 1899, and soldiers who enlisted in the Regular Army for the war only, who were discharged as provided in General Orders, No. 40, of 1898, and who have otherwise complied with the acts of January 12 and March 3, 1899, are entitled to extra pay.

(Comptroller Tracewell to the Secretary of War, February 8, 1900.)

I have received, by your direction, a letter from the Paymaster-General of the Army, dated January 13, 1900, referring to section 1290, Revised Statutes, General Orders, Nos. 40 and 180 of 1898, and Nos. 5, 54, and 67 of 1899, and requesting my decision upon the following propositions, to wit:

1. "It is submitted that volunteers discharged under provisions of General Order 54, referred to, are, in fact, discharged (i. e., mustered out) by expiration of term of service, and the Government having by General Order 67 of 1899, on condition that they immediately reenlist, waived the requirement that for the sea travel they shall be furnished allowances in kind, they are entitled to full travel allowances and to extra pay notwithstanding that under the provisions of said General Order 67 they do so reenlist."

2. "It is also submitted that soldiers in the Regular Army discharged under the provisions of General Order 40 of 1898, as having enlisted for the war only, are, in fact, discharged by expiration of term of service, and they also should be held entitled to full travel pay and extra pay on such discharge under provisions of General Order 54 if reenlisting as above described."

The questions submitted, so far as they relate to traveling allowances, are covered by my decisions in letters to the Secretary of War, as follows:

1. A letter, dated August 8, 1898 (5 Comp. Dec., 60), relating to soldiers who enlisted in the Regular Army, for the war only, under the act of April 26, 1898 (30 Stat., 364) and General Orders, No. 40, of 1898, and who were discharged at their own request at the close of the war with Spain, in which cases it was held that such a discharge is not a matter of favor or con

venience to the soldier, but a matter of right under his contract of enlistment, and that his right to travel pay on such a discharge is the same as on a discharge by reason of expiration of term without the application.

2. My letter of this date, addressed to the Secretary of War, in answer to questions submitted in the case of George Minetty, in which it was held that officers and soldiers belong. ing to volunteer organizations brought into the service of the United States under the act of April 22, 1898 (30 Stat., 361), and amendments thereof, who were discharged on or after April 11, 1899, the date of the close of the war with Spain, under the provisions of General Orders, No. 54, dated March 22, 1899, are to be regarded as discharged as a matter of right and not for their own convenience, and they are entitled to traveling allowances in kind, or to the commutation provided for in sections 1289 and 1290 of the Revised Statutes.

In cases of the two classes of soldiers above mentioned, the principles by which the right to traveling allowances under section 1290, Revised Statutes, and the right to extra pay under the acts of January 12, 1899 (30 Stat., 784), and March 3, 1899 (30 Stat., 1073, 1074), are to be determined are, so far as the discharge is concerned, substantially the same.

Such soldiers, having been enlisted for the war only, and having been discharged as a matter of right after the close of the war with Spain, are entitled to the extra pay, provided they have otherwise fulfilled the conditions of the laws granting extra pay.

The place of discharge and a subsequent enlistment, or a refusal to enlist again, do not in any way affect the soldier's right to extra pay.

EXTRA PAY TO SOLDIERS WHO ENLISTED AFTER NOTICE OF GENERAL ORDERS, NO. 173, HAD BEEN RECEIVED.

A soldier who enlisted in the Regular Army after notice of General Orders, No. 173, of 1898, had been received at the place where he enlisted did not enlist for the war only, and he is not entitled to extra pay under the act of March 3, 1899.

(Decision of Comptroller Tracewell, February 13, 1900.)

William S. O'Brien, by letter dated January 23, 1900, appeals from the action of the Auditor for the War Department in settlement dated January 16, 1900.

Said O'Brien enlisted November 15, 1898, to serve three years as a private in the Regular Army, was assigned to Company D, Twenty-second United States Infantry, and was discharged September 9, 1899, at Presidio, Cal., for disability, gunshot wound in the head, received in line of duty in the Philippines. Service honest and faithful.

His claim for two months' extra pay, under act of March 3, 1899, was disallowed by the Auditor without definitely stating the reason.

The act of March 3, 1899 (30 Stat., 1074), provides—

"That all enlisted men in the Regular Army who enlisted subsequent to the declaration of war for the war only and mustered out of the service, who have served honestly and faithfully beyond the limits of the United States, shall be paid two months' extra pay on muster out and discharge from the service; and all enlisted men in the Regular Army who enlisted subsequent to the declaration of war for the war only and mustered out of the service, who have served honestly and faithfully within the limits of the United States, shall be paid one month's extra pay on muster out and discharge from the service from any money in the Treasury not otherwise appropriated, said moneys to be immediately available."

Section 2, act of August 1, 1894 (28 Stat., 216), provides"That hereafter all enlistments in the Army shall be for the term of three years."

The act of April 26, 1898 (30 Stat., 364), provided for an increase of the Regular Army in time of war, and section 7 of said act required the Army to be reduced to a peace basis at the close of the war.

To carry out the provisions of said act orders were issued by the Secretary of War, as follows:

"By direction of the Secretary of War it is announced that men enlisted or reenlisted in the Regular Army during the war may be informed that they will be granted their discharges, if desired at the close of the war, upon their individual applications." (Par. 2, G. O., No. 40, Washington, May 10, 1898.)

"By direction of the Secretary of War it is announced that Paragraph II, General Orders, No. 40, May 10, 1898, from this office, will not govern in the cases of men hereafter enlisted or reenlisted in the Regular Army." (Par. 1, G. O., No. 173, Washington, October 26, 1898.)

It is therefore held that a soldier who enlisted in the Regular Army after notice of General Orders, No. 173, had been received at the station where he enlisted can not be regarded

as having enlisted "for the war only," but for the full term of three years, and he is therefore not entitled to extra pay on his discharge.

As the claimant enlisted November 15, 1898, for the full term of three years, and not for the war only, he is not entitled to extra pay under any existing law.

The action of the Auditor is, therefore, affirmed.

THE PURCHASE OF LAW BOOKS FROM FEES COLLECTED BY THE RECORDER OF DEEDS.

The provision in the act of July 14, 1892, which authorizes the recorder of deeds of the District of Columbia to use the fees of his office for miscellaneous expenses of his office is in the nature of an appropriation, and as it does not specifically provide for law books their purchase therefrom is prohibited by section 3 of the act of March 15, 1898. (Comptroller Tracewell to the Recorder of Deeds, District of Columbia, February 14, 1900.)

I have received your letter of the 12th instant, asking whether you are forbidden by the terms of section 3 of the act of March 15, 1898 (30 Stat., 316), to purchase for the use of your office copies of the Revised Statutes and Statutes at Large.

That section is as follows:

"That hereafter law books, books of reference, and periodicals for use of any Executive Department, or other Government establishment not under an Executive Department, at the seat of government, shall not be purchased or paid for from any appropriation made for contingent expenses or for any specific or general purpose unless such purchase is authorized and payment thereof specifically provided in the law granting the appropriation."

It is clear from numerous decisions of this office that the books to which you refer are to be classed as law books and that their purchase for use in any Executive Department or other Government establishment not under an Executive Depart ment is forbidden, unless they are appropriated for in terms. (4 Comp. Dec., 692; 5 id., 10, 24; 6 id., 226, 311.) It only remains to be decided whether your office is covered by the terms of the act.

The expenses of the office of the recorder of deeds are paid