Section 2879 of the Revised Statutes provides that-

"If, by reason of the delivery of the cargo in several districts, more than the term allowed by law is spent therein, the wages or compensation of the inspector who may be employed on board any vessel, in respect to which such term may be so exceeded, shall, for every day of such excess, be paid by the master or owner; and the inspector shall, previously to the clearance of the vessel, render an exact account to the collector of all such compensation as has been paid, or is due and payable by the master or owner."

It is apparent from an examination of these statutes that an inspector may be required to perfom his official duties at unusual hours and outside the limits of the port, and may be placed on any vessel which comes within the limits of the district and kept there while the vessel remains in the district or in going from one district to another.

The only thing authorized to be collected from the vessel is wages or compensation. These wages and compensation are necessarily such as the inspector is authorized to receive. He would be required to incur such personal expenses as were necessary to enable him to perform his official duties. The $1 increase of compensation allowed by the act of December 16, 1902, at the port of New York was for work now performed by them at unusual hours, for which they received no compensation, and for reimbursement for meals and transportation while in the discharge of their official duties. The amount allowed by this act was intended to cover all expenses as a part of the compensation. (See decisions of this office of February 27, 1906, 36 MS. Comp. Dec., 778, and November 24, 1908, 47 MS. Comp. Dec., 1009.)

The act of March 4, 1909 (35 Stat., 1065), gave the Secretary of the Treasury authority to increase and fix the compensation of inspectors of customs as he may think advisable, not to exceed $6 per day. In all cases where the maximum compensation is paid he is prohibited from making any allowance for meals or other expenses incurred by inspectors when required to work at unusual hours.

I am of the opinion that this last provision was to prevent an increase of the compensation by the making of an allowance for expenses in cases where the maximum was paid, which was the way the increase of $1 was to be effected by the

act of December 16, 1902. When the act of March 4, 1909, is read in the light of prior acts and of the duties the inspectors are required to perform, as indicated in the sections of the Revised Statutes quoted, it is reasonably certain that it was intended by said act to authorize the Secretary of the Treasury to fix a stated sum per day as the compensation of inspectors to include all personal expenses incurred in the performance of their official duties, which fixed sum could not exceed $6, and is all that they can be paid, whether called expenses or compensation.

Your first question must therefore be answered in the negative.

Your second question is answered in the negative because the law specifically provides that the importer or vessel importing shall, under certain circumstances, pay the wages and expenses of employees in addition to the customs dues. Such being the case, these special acts preclude the idea that in cases not so covered an extra charge can be made in addition to the customs tax.

REFUNDING OF AMOUNTS DEPOSITED IN THE TREASURY TO COVER COSTS AND EXPENSES IN SMUGGLING CASES.

When settlements have been made, pending actions in smuggling cases, by payment of amounts to cover the duty on the appraised value of the smuggled goods together with the costs incurred, and such total amount has been covered into the Treasury without deducting the proper charges and expenses incurred, the amount of such charges and expenses can be refunded under the provisions of section 3689 of the Revised Statutes.

Comptroller Tracewell to the Secretary of the Treasury, April 8, 1910. You request my decision of the question submitted in your letter of March 22, 1910, as follows:

"I transmit herewith a letter received from the collector of customs at Los Angeles, Cal., dated the 9th instant, inclosing a voucher of L. V. Youngworth, United States marshal at Los Angeles, for expenses incurred in connection with the case of smuggling certain diamond jewelry by Benjamin Schwob, of Los Angeles.

"This case was settled upon payment of the sum of $345.70, of which sum $300 represents the duty on the appraised value of the jewelry and $45.70 the costs incurred.

The sum $345.70 was paid to the collector of customs, who deposited the entire amount with the Assistant Treasurer, and the same has been covered in the Treasury to the credit of customs fines, without first paying the expense covered by the voucher herewith.

"I will thank you for a decision as to the appropriation from which this claim for $45.70 may be paid.”

The letter of the collector of customs referred to, dated February 8, 1910, is as follows:

"Again referring to the alleged smuggling of certain diamond jewelry having been seized by Special Employee A. W. Smith on January 25, 1909, and later released (under authority of department letter E.K.D.-62923-B of October 8, 1909) upon payment of the sum of $345.70, of which sum $300 represents the duty on the appraised value of the jewelry and $45.70 the costs incurred in the action which was brought in the matter, I have to state that, governed by Treasury Decision 10690, I deposited the entire amount received in compromise of said case ($345.70) to the credit of the Secretary of the Treasury in his Special deposit account No. 5.'

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"Under date of October 12, 1909, department letter E.B.D., advised me that the deposit should have been made to the credit of the Treasurer of the United States, in my name, on account of the customs fines, and stated that the Secretary's check had been forwarded to the bank with instructions to issue a certificate in my name on account of customs fines. The certificate was issued by the local depository October 18, 1909, and is numbered 584.

"I am this day in receipt of a letter from the United States marshal for this district, inclosing a bill by the Daily Journal Company for publishing marshal's notice of seizure, $32.50; and a bill for marshal's fee, $2; there is also court costs amounting to $11.20; total, $15.70.

"I respectfully request that authority be granted to me to pay these bills."

The act of June 22, 1874 (18 Stat., 186), provides:

"SEC. 2. That all provisions of law under which moieties of any fines, penalties, or forfeitures, under the customsrevenue laws, or any share therein, or commission thereon, are paid to informers, or officers of customs, or other officers of the United States, are hereby repealed; and from and after the date of the passage of this act the proceeds of all such fines, penalties, and forfeitures shall be paid into the Treasury of the United States."

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SEC. 4. That whenever any officer of the customs or other person shall detect and seize goods, wares, or merchandise,

in the act of being smuggled, or which have been smuggled, he shall be entitled to such compensation therefor as the Secretary of the Treasury shall award, not exceeding in amount one-half of the net proceeds, if any, resulting from such seizure, after deducting all duties, costs, and charges connected therewith."

Section 3090 of the Revised Statutes provides that:

"From the proceeds of fines, penalties, and forfeitures incurred under the provisions of the laws relating to the customs, there shall be deducted such charges and expenses as are by law in each case authorized to be deducted; and the residue of the proceeds shall be paid into the Treasury of the United States, and distributed, under the direction of the Secretary, in the manner following, to wit: "

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Section 3689 of the Revised Statutes makes a permanent annual appropriation of such sum as may be necessary, as follows:

"Refunding moneys erroneously received and covered: "To refund moneys received and covered into the Treasury before the payment of legal and just charges against the same."

Section 3087 of the Revised Statutes provides that

"The collector within whose district any seizure shall be made or forfeiture incurred for any violation of the duty laws is hereby enjoined to cause suits for the same to be commenced without delay, and prosecuted to effect; and is, moreover, authorized to receive from the court within which such trial is had, or from the proper officer thereof, the sum recovered, after deducting all proper charges to be allowed by the court; and on receipt thereof he shall pay and distribute the same without delay, according to law.

The sum recovered in this case is to be treated as a fine. (26 Op. Att. Gen., 583, 588.) Since the passage of the act of June 22, 1874, the proceeds of all fines must be paid into the Treasury of the United States, and the collector would have no right to distribute the same as is provided in section 3087 of the Revised Statutes. All proper charges and expenses, however, under sections 3087 and 3090 of the Revised Statutes, should be deducted before payment into the Treasury.

The amount of the vouchers presented constitute proper charges against the fund which should have been paid out

of it before it was covered into the Treasury. (15 Comp. Dec., 82.)

The amount therefore having been erroneously covered into the Treasury before the payment of these expenses, they can be refunded under the provisions of section 3689 of the Revised Statutes.

DEDUCTION OF PAY FOR DAYS OF ABSENCE.

When an employee, in a thirty-one-day month, has been engaged in three different services during the entire month and has had three paymasters by whom he was paid in all for thirty days, the fact that he was granted leave of absence for one year without pay in order that he might enter upon the third service does not warrant deduction of pay for days of absence.

Decision by Comptroller Tracewell, April 13, 1910.

Lieut. R. C. Moore, Corps of Engineers, U. S. Army, disbursing agent, appealed March 29, 1910, from the action of the Auditor for the War Department in settlement No. 11542, dated March 10, 1910, wherein was disallowed an item of $5 from voucher No. 20 in his account for August, 1909, as follows:

"Item 4.-Frank D. Fletcher, clerk from August 2 to 6, five days, at $1,800 per annum.

"The voucher states that this employee was on leave of absence without pay from August 7. August being a thirtyone-day month, pay for number of days employee was absent should have been deducted. See decision of the Comptroller of the Treasury dated September 10, 1906 (13 Comp. Dec., 205)."

The records show that Mr. Fletcher was employed in the office of the Chief of Engineers and paid for one day's service, August 1, 1909, at $1,600 per annum; on duty with the Board of Engineers from August 1 to 6, inclusive, and paid from August 2 to 6 at $1,800 per annum, five days, $25. On August 7, 1909, he was granted leave of absence for one year without pay by the Secretary of War for the purpose of permitting him to accept an appointment as clerk to the Committee on Rivers and Harbors, House of Representatives, where he was paid for twenty-four days' service, from August 7 to August 31, at $2.000 per annum.