JURISDICTION OF THE COMPTROLLER OF THE TREASURY AS TO THE QUESTION OF THE AMOUNT A UNITED STATES MARSHAL SHOULD CHARGE PRIVATE LITIGANTS FOR SERVING PROCESS.

The Comptroller of the Treasury is without jurisdiction to render an advance decision as to the question of the amount a United States marshal should charge private litigants in civil cases for the service of process, such as subpoena in chancery, injunction orders, etc., as this question is clearly one for the determination of the court upon the taxation of costs.

Comptroller Tracewell to F. B. Clark, United States marshal, June 22, 1910.

I am in receipt of your letter of the 15th instant, as follows:

"Office Deputy Nichol served subpoena in chancery and injunction order in Laughrey v. Hannun et al. and Cummins v. Hannun et al. at Boone, Iowa, 43 miles from Des Moines, upon same trip. Mileage figures $2.58 and actual expense of deputy $2.80.

"Would it be proper to charge plaintiff in each of these cases mileage, or actual expense of deputy, in addition to fees for services?"

It is understood that you do not request my decision as to any payment to be made by you to Office Deputy Nichol, as the amount payable to him is not at all dependent upon what you shall charge and collect from the private litigants.

It is also obvious that what you shall charge these private litigants does not involve the payment by you, as a disbursing officer, of any claim or demand against the United States.

The Comptroller is without jurisdiction to render an advance decision upon the request of a marshal as to what the marshal shall charge private litigants in civil cases for the service of process, such question being “clearly one for the determination of the court upon the taxation of costs." (See 3 Comp. Dec., 239, 241; 15 id., 410, 411.)

While I am without jurisdiction to decide the question presented, your attention is nevertheless directed to paragraphs 335, 338, 341, and 342 of "Instructions to United States Marshals, etc.," issued by the Attorney-General April 1, 1904, a careful reading of which will aid you in arriving at the proper amount collectible by you from the private litigants mentioned in your letter. If you have any doubts

as to the correct interpretation that you should place upon said "instructions," it is suggested that you correspond with the Attorney-General in reference thereto.

LECTURING SERVICES FOR UNITED STATES SERVICE SCHOOLS.

The services merely of a lecturer are not within the terms of the appropriation of March 3, 1909 (35 Stat., 733), authorizing the "purchase of text-books, books of reference, scientific and pro fessional papers" for United States service schools.

Assistant Comptroller Mitchell to the Secretary of War, June 22, 1910. I have your submission of June 20, 1910, of the request of Capt. A. E. Saxton, disbursing officer, the Army service schools, Fort Leavenworth, Kans., for decision whether payment is authorized from the appropriation of March 3, 1909, for the United States service schools, fiscal year 1910 (35 Stat., 733), of a voucher stated in favor of Caryl D. Haskins, as follows:

"For services rendered in delivering two lectures on electrical engineering at the army service schools, Fort Leavenworth, Kans. (manuscript of lectures is in possession of school and is being printed with a view to distribution to officers of the Army and Organized Militia through medium of the mailing list of schools), $100."

The voucher has not been certified by the payee nor by a government officer, but I take the submission to be an inquiry by you whether the appropriation for the United States service schools (35 Stat., 733) may be used for an expenditure of the character stated in the voucher.

The appropriation provides as follows:

"United States service schools: To provide means for the theoretical and practical instruction at the Staff College (including the army school of the line and the Army Signal School) at Fort Leavenworth, Kans., and the mounted service school at Fort Riley, Kans., by the purchase of text-books, books of reference, scientific and professional papers, the purchase of modern instruments and material for theoretical and practical instruction, and for all other absolutely necessary expenses, to be allotted in such proportions as may, in the opinion of the Secretary of War, be for the best

interests of the military service, twenty-five thousand dollars. * * * 99

The means of instruction authorized to be provided under the appropriation, supra, are "by the purchase of text-books, books of reference, scientific and professional papers." In 12 Comp. Dec., 519, in considering an appropriation for the service schools in almost similar terms, it appeared that the lectures were from notes prepared by the lecturer and were based on personal experience, and that said notes were reduced to such written form as to be available, and were to be used as a text-book for the instruction of students in subsequent classes in said college as a necessary and essential part of the course of instruction to be thereafter given in said college; and in view thereof the opinion was expressed that an expenditure for the traveling expenses of the lecturer was reasonably within the meaning and intent of the appropriation. In the above case no charges for his services were made by the lecturer.

In the present case I think the services merely of a lecturer are not within the terms of the appropriation, which appear to be confined to the purchase of " text-books, books of reference, scientific and professional papers," and payment for such lecturing services would not be authorized. The voucher states that the "manuscript of lectures is in possession of school and is being printed with a view to distribution to officers of the Army and Organized Militia " through medium of the mailing list of schools. The scientific and professional papers authorized to be procured by the appropriation are for the instruction of the service schools designated in said appropriation. The information furnished indicates that the voucher represents the payment for lecturing services and not the purchase of a scientific or professional paper for said service schools, and I am of opinion the expenditure would not be authorized from the appropriation, supra, for the service schools.

ADJUDICATION OF CLAIM BY CONGRESS NOT AFFECTED BY SETTLEMENTS MADE BY ACCOUNTING OFFICERS.

The proviso in the act of March 4, 1907 (34 Stat., 1356), relating to settlements by the accounting officers of the Treasury "without regard to former settlements or adjudications by their predecessors," does not affect claims adjudicated by Congress.

Decision by Assistant Comptroller Mitchell, June 23, 1910.

It appears from the records that James De Long was enrolled July 2, 1861, at La Fayette, Ind., mustered into service as private, Company A, Twentieth Indiana Infantry, to serve three years; promoted to corporal October 31, 1861; promoted to first sergeant October 1, 1862; promoted to second lieutenant, mustered in as such to date March 28, 1863; mustered in as first lieutenant to date April 18, 1863, and discharged September 5, 1864, near Petersburg, Va., on tender and acceptance of resignation on account of physical disability.

By army paymasters he was paid (errors excepted) pay and allowances as of the grades held by him as an enlisted man from July 2, 1861, to March 27, 1863; as second lieutenant, March 28, 1863, to April 17, 1863; and as first lieutenant from April 18, 1863, to September 4, 1864.

Under the provisions of the act of June 3, 1884, as amended by the act of February 3, 1887, his record was amended to show him mustered in as second lieutenant to date from February 16, 1863, and as captain to date from August 1, 1864.

By settlement No. 71260, confirmed by the Second Comptroller March 9, 1887, there was allowed in this case $224.53, being $100 bounty under act of April 22, 1872, $3.50 (net) pay and allowances for September 5, 1864, and $121.03 (net) allowances for traveling from place of discharge to place of enrollment on discharge of September 5, 1864.

There being no appropriation available from which to pay the amount ($224.53) found due by the accounting officers, said sum was (under the provisions of the act of July 7, 1884, 23 Stat., 254) certified by the Secretary of the Treasury to Congress for an appropriation as a legal claim, and Congress appropriated for the same March 30, 1888. (See p. 35,

H. Ex. Doc. No. 90, 50th Cong., 1st sess., and deficiency appropriation act of March 30, 1888; 25 Stat., 65.)

By settlement No. 99231, confirmed by the Second Comptroller October 20, 1888, there was allowed in this case $103.09, being pay and allowances due under amended record under act of June 3, 1884, and act of February 3, 1887, additional pay for responsibility with respect to the clothing, arms, and accouterments of a company, and other short payments.

There being no appropriation available from which to pay the amount ($103.09) found due by the accounting officers, said sum was (under the provisions of the act of July 7, 1884, 23 Stat., 254) certified by the Secretary of the Treasury to Congress for an appropriation as a legal claim, and Congress appropriated for the same March 2, 1889. (See p. 12, H. Ex. Doc. No. 59, 50th Cong., 2d sess., and deficiency appropriation act of March 2, 1889; 25 Stat., 932 and 933.)

The appropriation of specific sums to pay the claims in this case is an adjudication by Congress of said claims, which were for arrears of pay, bounty, and other allowances, and such an adjudication is conclusive upon the accounting officers; therefore I have no jurisdiction in the matter of said claims. (See decision of this office dated May 12, 1910, in the case of Joseph A. Mower, and authorities therein cited; also my decision in case of Parsons, June 11, 1910; in case of Lynn, June 16, 1910; and in case of Davidson, June 22, 1910.)

The War Department has decided that the act of February 24, 1897 (29 Stat., 593), does not affect the status of the said James De Long as of Twentieth Regiment Indiana Infantry; therefore he is not entitled to any pay or allowance by reason of said act. (See act of Congress approved April 19, 1910; public, No. 139.)

The proviso in the act of March 4, 1907 (34 Stat., 1356), relating to settlements by the accounting officers of the Treas ury "without regard to former settlements or adjudications by their predecessors " does not affect the claims adjudicated by Congress in this case.

The Auditor for the War Department, by his certificate No. 53258, dated March 7, 1910, allowed the said James De Long $3.83 on account of items embraced in the claims pre