applicable to such payment, and the action of the auditor is therefore affirmed.

The auditor for the District of Columbia joined the disbursing officer in this appeal. There is no authority of law for his appealing from the action of the Auditor for the States and other Departments. The appeal is dismissed as to him.

This revision is limited to the items appealed from.

SET-OFFS AGAINST COMMON CARRIERS FOR DAMAGE TO OR DESTRUCTION OF GOVERMENT PROPERTY.

Where common carriers submit to set-offs, against their accounts for services rendered, of amounts representing the value of government property damaged or destroyed by the carriers, the amounts thus set off are not moneys received within the purview of sections 3617 and 3618 of the Revised Statutes, requiring moneys received from any source whatsoever, certain specified classes excepted, to be covered into the Treasury, and no charge should be raised against appropriations on account of the amounts thus set off.

Comptroller Tracewell to the Secretary of the Interior, November 16, 1909:

I am in receipt of your letter dated November 9, 1909, as follows:

"This department has received your letter of October 25, with reference to the claim of the Geological Survey against the Wells-Fargo Company for $50, in which communication you state that because you do not possess the power to take money out of the Treasury, where the $50 was deposited, you are unable to reconsider the decision in which you approved the act of the auditor in deducting the sum mentioned from the appropriation of the Geological Survey and crediting the same to miscellaneous receipts. The department is not satisfied that there was any warrant of law for the auditor's action, but it is willing to consider this particular incident as closed, for the reason that the money can not be recovered for the benefit of the survey's appropriation, except by act of Congress.

"In your letter of October 25 you state:

"I will say, however, that when a similar case happens I will gladly reconsider the principle announced in said caseon your invitation, and it is possible that I may arrive at a different conclusion where money is not recovered in the

sense of being paid, but is simply not paid out of an appropriation, as was the case in question.'

"A similar case is now pending between the Geological Survey and the Southern Pacific Railroad. It appears that a mule, the property of the Geological Survey, was killed by a northbound train of the Southern Pacific Company at Bakersville, Cal., on January 11, 1909. The neglect of the railroad company to keep in good condition the fences on its right of way made it possible for this animal, among others, to break through and get upon the railroad tracks, with the result as stated, that one mule belonging to the Geological Survey was killed. The Geological Survey has put in a claim against the Southern Pacific Railroad Company for $200, the value of the animal killed. The Southern Pacific Railroad Company has offered to compromise, and by its attorney has authorized the deduction of the compromise sum from any pending freight bill or bills of the Southern Pacific Company.

"Before taking any action in this matter, however, the director of the Geological Survey desires to be advised whether or not the sum thus deducted may be used by that bureau to replace the animal lost, otherwise the appropriation of the Geological Survey will be impaired to that amount."

It was held in 13 Comp. Dec., 482 (syllabus):

"That moneys recovered from common carriers for the loss of government property should be deposited in the Treasury to the credit of miscellaneous receipts when the object of the appropriation out of which the lost articles were purchased is not thereby defeated."

This rule has been followed in numerous cases. cisions of July 2 and July 29, 1909.)

I decided in 40 MS. Dec., 1254:

(See de

"Where property of the Government is lost or destroyed by a common carrier and the value thereof is withheld from an amount due said carrier for services performed, the money so withheld should be deducted from the bill of the common carrier, and this ends the transaction. Such amount so withheld is not a receipt within the purview of section 3617, Revised Statutes."

I am of opinion that the holding in 40 MS. Dec., p. 1254, was a correct interpretation of the law governing the facts in that case. The real question now submitted is whether the railroad company, in submitting to a set-off on its existing claims because of some liability accrued to the Government

on account of other transactions, so pays money to the Government as would bring such money so paid within the purview of those sections of the statutes which require all moneys received from any source whatsoever to be covered into the Treasury unless such money falls within the class excepted in said sections. Treating such money so set off as paid, the only way it could be covered into the Treasury would be by taking an equivalent sum from the appropriation which received the benefit of the set-off and covering it into the Treasury. I find no statute directing such action, and hence where no money is actually paid I am of opinion that no charge should be raised against an appropriation on account of a set-off. The final result of such a transaction is that just the amount of the set-off acquiesced in by the government creditor is not paid out of the appropriation properly charged with the whole amount, including the amount set off, but such a transaction falls short of a receipt of money provided for by section 3617, Revised Statutes.

I am therefore constrained to hold, on a reconsideration of the whole matter, that the amount of such set-off should not be taken from the appropriation and covered into the Treasury.

PAYMENT OF INTEREST ON TRIBAL FUNDS TO THE HEIRS OF PAYEES WHO DIE BETWEEN TWO INTEREST-PAYING PERIODS. Under the terms of Article VI of the agreement with the Yankton tribe of Sioux Indians, as ratified by the act of August 15, 1894 (28 Stat., 316), providing for the semiannual per capita distribution of interest on tribal funds, if a payee dies between two payment periods his name is carried on the roll for one payment subsequent to his death and the share of the decedent in this payment is payable to his heirs.

Assistant Comptroller Mitchell to the Secretary of the Interior, November 16, 1909:

You request my decision of the questions stated in your letter of November 11, 1909, as follows:

"The regulations now in force in the Indian Office for making annuity and certain other payments to the Indians provide in part as follows:

"5. Deceased Indians may be carried on the rolls for one payment after death. This applies to all periodical pay

ments, whether the funds to be distributed are regular annuities or derived from sales of timber, grazing privileges, or other miscellaneous sources. In other words, where an Indian has been accustomed to receiving regular payments of more than one kind of funds, he may be carried on the rolls for one payment of each after death, provided the same accrued during the lifetime of the annuitant.

"Unless specifically provided by law, the interest of an Indian in the trust funds of his tribe has been held by this department to be not inheritable, and the heirs of an applicant for tribal funds under the act of March 2, 1907 (34 Stat. L., 1221), are not paid his share unless his application had been approved before his death and his pro rata share allotted to him by the Secretary of the Interior.

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The act of August 15, 1894 (28 Stat. L., 316), stipulates that after deducting certain amounts for the care of the helpless, the interest accruing each year on the Yankton tribal fund is to be paid to the tribe

"Semiannually, one-half on the thirtieth day of June and one-half on the thirty-first day of December of each year, in lawful money of the United States, and divided among them pro rata.'

"1. Would the heirs of a member of the Yankton tribe who died after July 1, and prior to December 31, be entitled to the interest accruing up to December 31?

"2. If not, would such heirs be entitled to the interest accruing after July 1 to date of ancestor's death?"

Article VI of the agreement with the Yankton Sioux Indians ratified by section 12 of the act of August 15, 1894 (28 Stat., 316), provided that:

"After disposing of the sum provided for in Article V, the remainder of the interest due on the purchase money as stipulated in Article III shall be paid to the Yankton tribe of Sioux Indians semiannually, one-half on the 30th day of June and one-half on the 31st day of December each year in lawful money of United States, and divided among them per capita, the first interest payment being made on June 30, 1893, if this agreement shall have been ratified."

Article V of this treaty provides for the use of portions of the interest for certain purposes therein specified. The amount of interest to be paid and distributed per capita would, to some extent, depend upon the amount expended for the benefit of the tribe between interest payments. This amount must be determined at each semiannual payment and deducted from the accrued interest. The amount of each per capita payment is determined by dividing the in

terest remaining by the number entitled to participate. The practical construction of the treaty has been to make this division at the semiannual interest periods. If a payee was living when a semiannual payment is made his right to participate in the succeeding payment is considered as having accrued at that time, and if he dies between two payments his name is carried on the roll for one payment subsequent to his death and his share in this payment is paid to his heirs. It would not be practicable to compute the interest, and in my opinion it was not contemplated that the amount of interest due each payee should be computed on any other basis, as to time, than the semiannual payment periods fixed in the treaty. If this be true it would be necessary to drop the name of a payee who died between two payments at the time fixed for the last payment prior to his death or at the time fixed for the first payment subsequent to his death. The construction adopted treats the right to interest for any interest period as indivisible and entire and as accruing to a payee who lives during any portion of the period and pays him up to the time fixed for the next payment and then drops his name from the rolls.

In my opinion this rule is equitable and is justified by the terms of the treaty.

"When a court of law is construing an instrument, whether a public law or a private contract, it is legitimate, if two constructions are fairly possible, to adopt that one which equity would favor." (Wash. & Idaho R. R. v. Coeur D'Alene Ry., 160 U. S., 77, 101.) (See also Christian v. First National Bank, 155 Fed. Rep., 705, 709.)

It follows that your first question must be answered in the affirmative.

The answer to the first question disposes of the second and renders any more specific answer than therein contained unnecessary.

TRAVELING EXPENSES OF DISTRICT JUDGES UPON TRANSFER OF ASSIGNMENTS TO DIFFERENT DIVISIONS OF THE DISTRICT OF ALASKA.

Authority is vested in the President, by the act of March 3, 1909 (35 Stat., 839), to assign a district judge in Alaska to any one of the four divisions therein, and the further authority is given him to change the assignment from one division to another.