The company claimed $230.90 for passenger transportation for the Treasury Department in January, 1909. The auditor allowed $181, and disallowed $49.90, as follows:

"Request 2542 was issued to Henry C. Stuart for firstclass limited transportation from Portland, Oreg., to New Orleans, La.

"On the face of this request the word 'limited' has been changed to read '30 days' with initials JCG.' This change increased the value of the request from $60.90 to $85.85, or $24.95, which increase is disallowed.

"Request No. 2552 was issued to Jesse C. Grant for firstclass limited transportation from Portland, Oreg., to New Orleans, La.

"On the face of this request the word 'limited' had been changed to read 30 days' with initials HCS.' This change increased the value of the request from $60.90 to $85.85, or $24.95, which increase is disallowed.

"The department can not recognize transportation furnished in excess of the original requests."

The company, by its attorney, appeals as follows:

Regarding the above disallowance I am in receipt of letter from our auditor reading, in part, as follows:

"Regarding the disallowance by the auditor, I wish to state that request No. 2542, issued to and presented by Henry C. Stuart to our agent at Portland, Oreg.,, called for firstclass limited ticket to New Orleans, and request No. 2552, issued to Jesse C. Grant, and presented to our agent at Portland, Oreg., also called for first-class limited ticket from Portland, Oreg., to New Orleans, La. Both of these parties demanded thirty-day tickets, and, in the confusion at the ticket window, each got the other request back, and indorsed it for thirty-day transportation, as is required by our agents. The change on the requests from first-class limited to thirtyday tickets was initialed by the parties presenting the transportation requests.

"From the statement of difference from the auditor's office, this is only too patent to the department, and as thirtyday transportation was furnished to these parties on their specific demand, the company is certainly entitled to the cost of such transportation, either from the Government or from the parties to whom the transportation was issued; so, if the Government can not authorize payment for other than limited transportation, the difference, $24.95 on each ticket, should be collected from Messrs. Stuart and Grant. The Interstate Commerce Commission has ruled that we can not accept less than the regular published tariff rate which pertains to a particular class of transportation issued, and that every legal

means must be taken to collect the proper rate, even though an error may have unwittingly been made by an agent in the first transaction.

"If these parties had no authority to change the request from limited transportation, we must look to them for reimbursement, and proper action taken to make the collection, but if in the service of the Treasury Department thirty-day transportation was necessary for the performance of their official duties, and they were empowered with authority to make necessary change, we are of the opinion that the department should make payment of our bill as rendered without further question.'

"I would respectfully ask, in view of the facts above presented, that you authorize additional allowance to the company of $49.90, or, if you consider that the Government is not entitled to pay this amount, that you request the department to have collection made of the sum from the gentlemen who performed the travel, inasmuch as the company is most certainly entitled to be compensated this amount from one or the other of these sources."

The requests for the transportation indicated were signed by an Assistant Secretary of the Treasury. The employee had no right to alter said request. The additional accommodations, if necessary, should have been paid for by the employee and reimbursement requested therefor. The transportation furnished in excess of that originally called for was furnished on the request of the employee and not of the Secretary of the Treasury. The railroad in furnishing such additional accommodations did so at its own risk. Furthermore, no employee has the right to make alterations over the signature of the Secretary. Alteration or erasure should only be made by a person who has authority to issue the request.

The allowance for the service can only be made in a case of this kind after an ascertainment of all the facts in connection therewith and whether the service as rendered is ratified and approved as necessary and required for the interest of the Government.

The approval of an account containing such items is not to be considered as an approval or ratification of alterations upon a request over the signature of the issuing officer.

The extra service rendered in accordance with such alterations should be specifically ratified and approved, and in the absence thereof a claim therefor should be disallowed.

In the present case the attention of the Secretary of the Treasury having been invited to the facts, and he thereafter having specifically approved the same for the full service rendered, payment is authorized as claimed.

DISPOSAL OF MONEYS REALIZED FROM PAYMENT OF NOTES GIVEN BY THE PANAMA RAILROAD COMPANY.

Sums of money realized from payment of notes given by the Panama Railroad Company for money advanced by the Isthmian Canal Commission, under an appropriation providing therefor, constitute moneys received for the use of the United States and should be covered into the Treasury as "Miscellaneous receipts."

Such advance of money was not a performance of service by the commission, and the repayment thereof would not constitute funds realized from performance of a service by the commission.

Comptroller Tracewell to the Secretary of the Treasury, July 23, 1909:

By your letter of the 19th instant you request an expression of my views on the question stated in your letter of that date, as follows:

"I inclose herewith for an expression of your views thereon certificate of deposit No. 7078, dated July 3, 1909, for the sum of $663,000 deposited by Mr. James G. Jester, disbursing officer of the Isthmian Canal Commission, on account of miscellaneous receipts, being a repayment of $650,000 advanced to the Panama Railroad Company for reequipment under the act of February 27, 1906 (34 Stat., 33), and $13,000 as semiannual interest on said sum from January 1, 1909, to June 30, 1909.

"In your communication of March 31, 1909, to the Secretary of the Treasury you advised that the Treasury of the United States should be reimbursed out of the proceeds of the sale of Panama Canal bonds authorized by the act of June 28, 1902 (32 Stat., 481), to the amount of the several appropriations for equipment and construction of the Panama Railroad and for the payment of the first mortgage bonds of the Panama Railroad Company.

"The appropriation of $650,000 by the act of February 27, 1906, was one of the several appropriations referred to.

"As the advances were made the railroad company, though not required by law so to do, gave its notes for the amount of such advances to the Isthmian Canal Commission, and the certificate of deposit above described is for the payment to the United States of the sum due as principal and interest of said notes.

"The amounts of the advances represented by the deposit of $650,000 were originally charged as Panama Canal expenditures, and it is now necessary to determine whether the principal of the notes, amounting to said sum of $650,000, Should be covered into the Treasury as a repayment to the credit of the appropriation from which originally drawn or as a miscellaneous receipt.

"If reimbursement for the advances in question is to be made from the proceeds of the sale of Panama Canal bonds, as indicated in your advisory opinion of March 31, 1909, should the principal of the notes, as in this case, be covered into the Treasury as miscellaneous receipts, thus effecting a reimbursement of the cash in the Treasury of the amounts withdrawn there from when the advances authorized by law were made.

"If the deposits should be covered into the Treasury to the credit of the original appropriation accounts, the same result would be reached and it would also permit of a deduction being made for such repayments in the appropriation accounts which carry the total expenditures for the Panama Canal."

Section 3617 of the Revised Statutes provides that:

"The gross amount of all moneys received from whatever source for the use of the United States, except as otherwise provided in the next section, shall be paid by the officer or agent receiving the same into the Treasury, at as early a date as practicable, without any abatement or deduction on account of salary, fees, costs, charges, expenses, or claims of any description whatever."

The act of February 27, 1906 (34 Stat., 33), in the appropriation to continue the construction of the Isthmian Canal under the act of June 28, 1902 (32 Stat., 481), contained the following item, viz:

"To be used as an advance to the Panama Railroad Company to pay for reequipment of that company, six hundred and fifty thousand dollars."

Section 4 of the act of March 4, 1909 (35 Stat., 1026), provides that:

"All funds realized during the fiscal year nineteen hundred and ten by the Isthmian Canal Commission from the performance of services by the commission, or from rentals, or from the sale of materials and supplies under the custody and control of the commission, are hereby reappropriated for expenditure under any of the foregoing classified appropriations for the department of construction and engineering,

and a full and separate report in detail of all transactions hereunder shall be made to Congress."

The same provision is found in section 6 of the act of May 27, 1908 (35 Stat., 387).

As advances were made under the provisions of the act of February 27, 1906, the Panama Railroad Company executed notes therefor, and the sum in question was realized from the payment of these notes.

I am of the opinion that the sums so realized constitute moneys received for the use of the United States within the meaning of section 3617 of the Revised Statutes, and unless they come within the class of moneys reappropriated by section 4 of the act of March 4, 1909, quoted above, they should be paid into the Treasury.

I am of the opinion that they are not funds realized during the fiscal years 1909 or 1910, by the Isthmian Canal Commission "from the performance of services by the commission or from rentals, or from the sale of materials," within the meaning of the acts of May 27, 1908, and March 4, 1909, supra. An advance of money to the Panama Railroad Company under an appropriation providing therefor is not the performance of a service by the commission, and the repayment of the moneys so advanced would not constitute funds realized from the performance of a service by the commission. Neither are such moneys realized from the sale of materials or supplies within the meaning of the acts of May 27, 1908, and March 4, 1909. The moneys should be covered into the Treasury as miscellaneous receipts.

GOVERNMENT LIABILITY FOR LOSS OR DAMAGE TO PRIVATE PROPERTY UNDER A CONTRACT.

A proposed contract with a railroad company, stipulating for the return to the company of all freight cars delivered to the Government on the latter's own tracks in the same condition as when received, less fair wear and tear, at not to exceed $3,000 per year for repairs and replacements thereunder, is not authorized by section 3483 of the Revised Statutes, relating to reimbursement for the damage or destruction of private property, including railroad cars, while in the military service of the United States; and the appropriation of March 3, 1909 (35 Stat., 730), for the current expenses of the ordnance proving ground at Sandy Hook is not applicable to such proposed expenditure.