been assigned you; will proceed to you (r) home and await orders.

"Hold yourself in readiness for sea service.

*

"W. P. POTTER,

"Chief of Bureau.” The class of 1909, of which claimant was a member, was formally graduated from the Naval Academy on June 4, 1909, and their diplomas dated from that date. It appears that claimant was deficient in examination and was given two reexaminations, passing on the second reexamination in October, the superintendent of the Naval Academy reporting in a letter of October 16, 1909, that he had successfully passed, and that he was given a diploma from the Naval Academy bearing date June 4, 1909, the date upon which the class of which he was a member was formally graduated. His name is borne in the Naval Register of 1910 at the end of the list of midshipmen who have passed the requisite academic course and are in the performance of two years' service at sea.

The superintendent of the Naval Academy reports, April 29, 1910, as follows:

"In the opinion of the superintendent Midshipman Price was graduated from the Naval Academy on June 4, 1909, subject to a reexamination in two academic branches. Midshipman Price was finally passed on October 16 and his diploma of date of June 4, 1909, delivered to him."

The Chief of the Bureau of Navigation, in an indorsement dated May 2, 1910, states that the views of the superintendent of the Naval Academy, as above expressed, are concurred in and that that "bureau is of the opinion that Midshipman Price graduated from the Naval Academy on June 4, 1909," and the Secretary of the Navy, May 16, 1910, states that the above report of the superintendent is approved of by the Navy Department.

The act of May 13, 1908 (35 Stat., 128), provides:

"The pay of midshipman shall hereafter be six hundred dollars per annum while at the Naval Academy, and one thousand four hundred dollars per annum after graduation from the Naval Academy."

Upon the facts stated I am of the opinion that the date of claimant's "graduation" from the Naval Academy within

the meaning of the above act was June 4, 1909, and that he is entitled to pay at the rate of $1,400 for the period claimed. (16 Comp. Dec., 262; MS. Comp. Dec., In re Schuyler, May 17, 1910.)

The Auditor's action is reversed, and I find and certifiy a difference in favor of claimant of $293.34.

PAYMENT FOR TELEGRAMS OF NAVAL OFFICERS RELATING TO PRIVATE MATTERS.

Telegrams sent by naval officers accepting or declining invitations to private dinners in honor of the return of the United States fleet from its cruise around the world concern strictly private matters, and are not business pertaining to the Navy Department or its bureaus and can not be paid for from the appropriation for pay, miscellaneous, contained in the act of May 13, 1908. (35 Stat.,

129.)

Telegrams on strictly private business can not be transformed into official telegrams by the mere fact that the senders in the communications to which they are responses were addressed by their official titles.

Decision by Assistant Comptroller Mitchell, May 19, 1910.

Paymaster D. W. Nesbit, U. S. Navy, appealed May 4, 1910, from so much of the action of the Auditor for the Navy Department in settlement No. 1885D, dated March 23, 1910, as disallowed credit to him for the following items:

"Public bill No. 8 (pay, miscellaneous, 1909), is partially disallowed March 23, 1910, telegrams as follows, for the reason they pertain to private invitations to dinner and have no relation to public business.

See Section 1525, paragraph 11, Navy Regulations, 1909: Telegram No. 4940, dated February 25, 1909. Telegram No. 4947, dated February 25, 1909. Telegram No. 4986, dated February 25, 1909. Telegram No. 4986, dated February 25, 1909. Telegram No. 5023, dated February 26, 1909. Telegram No. 4947, dated February 26, 1909–

$0.29

51

.38

.37

.36

20

2. 11

The telegrams in question are telegrams sent by officers on the U. S. S. Connecticut accepting or declining invitations to private dinners arranged in their honor in Washington upon the return of the United States fleet from its cruise

around the world. It is alleged that the officers were addressed by their official titles and not by name in the invitations to the dinners thus extended to them, and that by reason thereof their replies to such invitations became official business.

The appropriation from which these telegrams were paid is "Pay, miscellaneous, 1909," and so far as telegrams are concerned is confined to "all charges pertaining to the Navy Department and its bureaus for telegrams. (Act of May 13, 1908, 35 Stat., 129.)

* * *

The contents of the telegrams were concerning strictly private matters and were not therefore business pertaining to the Navy Department or its bureaus, nor were they of benefit to the Government, nor in the fulfillment of a duty devolving upon the Government. (See 45 MS. Comp. Dec., 1260, May 19, 1908.) A telegram otherwise on private business can not be transformed into an official telegram by the mere fact that the sender in the communication to which it is a response was addressed by his official title.

The Auditor's disallowance of said items is affirmed.

REIMBURSEMENT OF DISBURSING OFFICER FOR THE UNITED STATES COURT FOR CHINA FOR EXCESS DISBURSEMENTS MADE BY HIM FROM APPROPRIATIONS FOR THE EXPENSE OF UNITED STATES COURT FOR CHINA.

Where the disbursing officer for the United States court for China disburses for expenses of that court a sum of money in excess of the total annual appropriation for that purpose, using money for such excess payments from other appropriations or advanced the same out of his private funds, the Auditor is without authority in settling the disbursing officer's account to certify the excess payments as legal claims.

Decision by Comptroller Tracewell, May 20, 1910.

The Auditor for the State and other Departments, under date of the 13th instant, reported for approval, disapproval, or modification the following decision:

"The special disbursing officer for the United States court for China, Mr. M. Hubert O'Brien, for the fiscal year 1909 exceeded the appropriation specified for the purchase of

furniture for that year in the sum of $110.84, and also that specified for court expenses in the sum of $6.26.

"The act of May 21, 1908 (35 Stat., 178), making appropriation for the salaries and expenses, United States court for China, for the fiscal year 1909, provides as follows:

"Judge of the United States court for China, eight thousand dollars; district attorney of the United States court for China, four thousand dollars; marshal of the United States court for China, three thousand dollars; clerk of the United States court for China, three thousand dollars; stenographer of the United States court for China, one thousand eight hundred dollars; for court expenses, seven thousand dollars; total, twenty-six thousand eight hundred dollars.

"The judge of the said court and the district attorney shall, when the sessions of the court are held at other cities than Shanghai, receive in addition to their salaries their actual expenses during such sessions, not to exceed ten dollars per day for the judge and five dollars per day for the district attorney, and so much as may be necessary for said purposes during the fiscal year ending June thirtieth, nineteen hundred and nine, is hereby appropriated.

"For compensation of deputy marshals at Canton and Tientsin, so much as may be necessary during the fiscal year ending June thirtieth, nine hundred and nine, at the rate of five dollars each for each day the sessions of the court are held at their respective cities.

"For compensation of deputy clerks at Canton and Tientsin, so much as may be necessary during the fiscal year ending June thirtieth, nineteen hundred and nine, at the rate of five dollars each for each day the sessions of the court are held at their respective cities.

“For rent of premises for the use of the United States court for China at Shanghai, two thousand four hundred dollars.

"For the purchase of necessary furniture for the premises to be occupied by the United States court for China at Shanghai, one thousand eight hundred dollars."

"There has been expended by the said disbursing officer for said year, as follows:

For judge.

For district attorney.

For marshal

For clerk

For stenographer

For court expenses.

For expenses on circuit.

For rent

For furniture

$8,000.00 4,000.00 3, 000, 00

3,000.00 1,234.94 7,006. 26 760.54

780. 10 1,910. 84

"I decide to allow the said disbursing officer in a claims settlement the amount of his said expenditures which is in excess of the amount appropriated, aggregating $117.10, to be reported to Congress for a deficiency appropriation.

66

These expenses relating to a service established by law, I consider that they are not such as are inhibited from settlement and allowance under section 3679, United States Revised Statutes, as amended by deficiency appropriation acts, section 4 of March 3, 1905 (33 Stat., 1257), and section 3 of February 27, 1906 (34 Stat., 38), which is as follows:

"SEC. 3679. No executive department or other government establishment of the United States shall expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. Nor shall any department or any officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. All appropriations made for contingent expenses or other general purposes, except appropriations made in fulfillment of contract obligations expressly authorized by law, or for objects required or authorized by law without reference to the amounts annually appropriated therefor, shall, on or before the beginning of each fiscal year, be so apportioned by monthly or other allotments as to prevent expenditures in one portion of the year which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made; and all such apportionments shall be adhered to and shall not be waived or modified except upon the happening of some extraordinary emergency or unusual circumstance which could not be anticipated. at the time of making such apportionment, but this provision shall not apply to the contingent appropriations of the Senate or House of Representatives; and in case said apportionments are waived or modified, as herein provided, the same shall be waived or modified in writing by the head of such executive department or other government establishment having control of the expenditure, and the reasons therefor shall be fully set forth in each particular case and communicated to Congress in connection with estimates for any additional appropriations required on account thereof. Any person violating any provision of this section shall be summarily removed from office and may also be punished by a fine of