By army paymasters he was paid pay and allowances as a private from October 29, 1861, to April 30, 1863, and from January 1, 1864, to August 21, 1864, travel allowances on discharge, $100 bounty as above stated, and his clothing account was adjusted up to and including August 21, 1864. His account with the United States is as follows:

Bounty erroneously paid___

DEBIT.

CREDITS.

Pay from May 1, 1863, to June 9, 1863, from November 1, 1863, to December 31, 1863, and for August 22, 1864, $43.43 less 43 cents pay overpaid to December 31. 1861.

Clothing money for August 22, 1864_.

Net overpayment.

$100.00

$43.00
.12

43. 12

56.88

The action of the auditor in disallowing the claim in this case is affirmed.

EMPLOYMENT OF PHYSICIANS TO ATTEND CONSULS.

The expense of employing a physician to attend an American consul at his station is a personal expense, and not such as is contemplated by Congress in providing for the payment of the miscellaneous expenses necessary in the transaction of the business of the consulate. Such an expense is therefore not properly payable out of the appropriation 'Contingent expenses, United States consulates."

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Where the compensation of a civil officer or employee is fixed by law, an allowance for medical attendance and services would be in the nature of additional compensation, and therefore unauthorized. Acting Comptroller Mitchell to the Secretary of State, August 11, 1909: I am in receipt of your letter of the 3d instant, as follows: "The department is in receipt of a dispatch from the American consul at Nanking, China, requesting, in view of the unhealthy climate of that place and the resulting necessity of engaging regularly the services of a physician (the expense of which the consul states he is personally unable to bear), that he be permitted to expend annually approximately $200 for engaging a physician regularly, as is the case with the British, German, and Japanese consulates at Nanking.

"It may be stated in this connection that there is a prevailing custom in most Chinese ports for consulates, business firms, etc., to pay a regular amount each year toward the support of a port physician, and realizing the burden which this additional expense places upon the American consul at Nanking and also the necessity for such services on account of the climate and health conditions, the department feels disposed to relieve him of the necessity of defraying such expenditures out of his own salary.

"I have, therefore, to request an opinion as to whether, under the last clause of the appropriation for contingent expenses, United States consulates, reading, and such other miscellaneous expenses as the President may think necessary for the several consulates and consular agencies in the transaction of their business,' such a charge would be regarded as legal."

It has been well settled by this office that where the compensation of an officer or employee is not fixed by law, but is provided for by contract, provision may be made in the contract of employment for medical attendance in case of injury or sickness occurring in the line of duty, as a part of compensation. But in the absence of such provision in the contract, or of provision therefor by statutory enactment, the Government is under no legal obligation to pay for such attendance upon sick or disabled officers or employees. (See 8 Comp. Dec., 296.)

In 6 Comp. Dec., 955, 956, it was said:

"It has been held with substantial uniformity by the accounting officers that there is no authority of law to furnish medicines or medical attendance to civilian officers or employees of the Government, except in cases where the contract of employment provides for the same or where some existing regulation of the department for which the service is rendered makes the furnishing of such supplies or attendance a part of the contract of employment.

It was held by Comptroller Bowler (1 Comp. Dec., 62) that surgical and hospital expenses of a civil employee, injured in service, was not a proper charge against the Government in the absence of express statutory provision therefor; and following that rule, he also held (1 Comp. Dec., 289) that a clerk in a navy-yard was not entitled to reimbursement for medicines and medical attendance while sick on duty.

The principles above announced have been uniformly adhered to in all similar cases presented to this office. In 7 Comp. Dec., 407, the expense of medical treatment of civilian employees on board a chartered transport was held not chargeable to the appropriation "Contingencies of the army," and in 11 Comp. Dec., 177, it was decided that the cost of medical treatment of an employee of the Geological Survey injured while in the performance of duty in the field was not a proper charge against the Government.

In 12 Comp. Dec., 27,. it. was held that where the compensation of a civil officer cr employee is fixed by law, an allowance for medical attendance and services would be in the nature of additional compensation and therefore unauthorized. The same rule was applied (13 Comp. Dec., 521) in the case of a civil employee, in receipt of an annual salary fixed by law, who became sick while traveling.upon official business.

The act of May 11, 1908 (35 Stat., 101), fixes the compensation or salary of the American consul at Nanking, China, at $4,000 per annum, and I know of no law authorizing any additional compensation to be paid to that officer while at his post and discharging the duties of his office.

The regular annual appropriation for "Contingent expenses, United States consulates," act of March 2, 1909 (35) Stat., 683), provides as follows:

"Expenses of providing all such stationery, blanks, record and other books, seals, presses, flags, signs, rent (allowance for rent not to exceed in any case thirty per centum of the officers' salary), postage, furniture, statistics, newspapers, freight (foreign and domestic), telegrams, advertising, messenger service, traveling expenses of consular officers and consular assistants, compensation of Chinese writers, loss by exchange, and such other miscellaneous expenses as the President may think necessary for the several consulates and consular agencies in the transaction of their business, five hundred and twenty-five thousand dollars."

It will be observed that the above appropriation contains no express provision for the payment of expenses incurred by a consul in procuring for himself medical treatment, nor can it be implied from the language of said act that it was the intention of Congress that the fund appropriated should be used for that purpose, unless such implication is drawn from

the provision conferring upon the President certain authority to exercise his discretion in the matter of approving "such other miscellaneous expenses " necessary" in the transaction" of the "business" of the consulate.

While the President, within the purview of this act, is given broad discretionary powers, still such discretionary powers are not unlimited, but are restricted by the terms of the act to an authorization of such other expenses only as are not specifically provided for, and which arise out of the transaction of the business of the consulate, which does not, of course, include the personal, or unofficial expenses of the

consul.

It is therefore necessary in this case to determine whether or not the expense occasioned by the employment of a physician to attend upon, and minister to, a consul is an expense necessarily arising in the transaction of the business of the consulate, and of a nature similar to the other expenses expressly provided for, or whether such an expense is more properly a personal expense of the consul.

I think it must be admitted that services performed by a doctor or physician in furnishing medical treatment and advice, or in supplying medicines to a consul whose health is impaired, in an effort to restore the consul's health, are not services rendered or supplies furnished "in the transaction" of the official "business" of the consulate. I hardly see how such an expense can be regarded as official when it represents a charge for services rendered directly to a consul in ministering to his bodily and physical well being.

It has never been the policy of the Government to pay such expenses out of the public funds, it being generally understood that it was incumbent upon such an officer to keep himself in condition to perform his official duties without cost to the Government. To hold otherwise would introduce an innovation in the use of general and "contingent appropriations.

I am of the opinion that the expense of employing a physician to wait upon the consul and furnish him with medical or other personal treatment is not such an expense as is contemplated by Congress in providing for the payment of the miscellaneous expenses necessary in the transaction of

the business of the consulate, and therefore not properly. payable out of the appropriation United States consulates."

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Contingent expenses,

PAYMENT OF EXPENSES OF TRANSPORTATION, ETC., OF SHIPWRECKED AMERICAN SEAMEN PICKED UP AT SEA.

Shipwrecked American seamen picked up by a steamer in the open sea are not excluded from the benefits of section 4579 of the Revised Statutes, which authorizes payment of the transportation expenses of distressed seamen of the United States from "foreign ports" where there is no consular officer to ports of the United States, as well as any reasonable additional compensation to the master or owner of the vessel transporting the seamen which shall be deemed equitable by the “First Comptroller of the Treasury;" and payment for the transportation, maintenance, and clothing furnished shipwrecked American seamen picked up at sea and transported to Nome, Alaska, from the appropriation "Relief and protection of American seamen is authorized.

Comptroller Tracewell to the Auditor for the State and other Departments, August 19, 1909:

I am in receipt of your letter of the 21st ultimo, inclosing the claim of H. Liebes & Co., agents and part owners of the American whaling steamer Bowhead, for transportation, maintenance, and supplies furnished the wrecked crew of the American whaling steamer Wm. Baylies.

You request that I inform you what sum should be allowed on this claim under section 4579, Revised Statutes.

Section 4579, referred to by you, provides as follows: "Whenever distressed seamen of the United States are transported from foreign ports where there is no consular officer of the United States to ports of the United States there shall be allowed to the master or owner of each vessel in which they are transported such reasonable compensation, in addition to the allowance now fixed by law, as shall be deemed equitable by the First Comptroller of the Treasury."

It has been held by the Comptroller, in a letter addressed to the Auditor for the State and other Departments, January 6, 1904 (28 MS. Comp. Dec., 29), that the "allowance now fixed by law" has reference to section 4578, Revised Statutes, as amended by the acts of June 26, 1884 (23 Stat.,