"UNITED STATES NAVAL STATION,

"Island of Guam, March 23, 1910. "SIR: Being authorized by the department's cablegram of March 12 to accompany the Supply to Olongapo for her annual docking, you will, while in the Philippines, carry out such business for the island government as can not well be delegated to others, including negotiations for certain specimens of the flora and fauna of those islands desirable for introduction into Guam; consultation with the prison authorities relative to the status of prisoners from Guam; and the exchange of certain currency from the island treasury for American money, etc.

"You will return to Guam on the Supply.

"Very respectfully,

"E. J. DORN,

"Captain, U. S. Navy, Commandant.

66

Capt. E. J. DORN, U. S. Navy (retired),

"Governor of Guam."

66

It appears that on March 11, 1910, Captain Dorn, governor of Guam, cabled the Secretary of the Navy as follows: Propose sending Supply Olongapo March 23; dock first week in April. Request you to authorize governor accompany. Leave in charge here Manion."

The reply referred to by Captain Dorn in his orders, supra, from the Secretary of the Navy, dated March 12, was as follows:

"Governor authorized accompany Supply Olongapo."

This seems to be a permission to make the journey. There is no indication in either cablegram that the trip was to be taken on public business. The orders of Captain Dorn, governor of Guam, to himself, supra, can have no effect other than that authorized by the Secretary of the Navy. (See Lopez v. United States, 44 Ct. Cls., 220, 223.)

The jurisdiction of Captain Dorn as governor of Guam is limited to the island of Guam, and any additional duties beyond that island must be imposed by the Secretary of the Navy or higher authority.

The provision for the additional pay for shore duty beyond seas (35 Stat., 128) is as follows:

"All officers on sea duty and all officers on shore duty beyond the continental limits of the United States shall while so serving receive 10 per centum additional of their salaries

and increase as above provided, and such increase shall commence from the date of reporting for duty on board ship or the date of sailing from the United States for shore duty beyond the seas.

*

An officer on leave from shore duty beyond seas is not entitled to the 10 per cent additional pay under this act, as it is provided only " while so serving" on shore duty beyond seas and the officer when on leave is not "so serving." In Colhoun v. United States (38 Ct. Cls., 198, 202) the court Isaid of the claimant when on leave:

"As a matter of fact, the claimant was not on duty of any kind, either sea or shore, but in a state of suspended activity. performing no duty and having no cares of office. The very object of leave is that the officer shall be free from the responsibility of duty." (See also 14 Comp. Dec., 896; 15 id., 548, 656.)

On the other hand, an officer of the Navy on shore duty beyond seas when placed by competent orders on temporary duty away from his regular station but in connection therewith is entitled to the additional pay while on such temporary duty. (See United States v. Engard, 196 U. S., 511; Collins v. United States, 37 Ct. Cls., 222; Leigh v. United States, 43 id., 374, 388; 13 Comp. Dec., 884; and decision of this office of March 20, 1909, 48 MS. Comp. Dec., 1568.)

Therefore the right of Captain Dorn to the additional pay while absent from Guam, March 24 to April 29, 1910, depends upon his status during the absence; that is, whether he was on duty (under competent orders) in connection with Guam, or on leave. There is nothing in the cablegram to indicate that the journey was on such duty or otherwise than by mere permission to accompany the Supply to Olongapo. I am therefore of opinion that he is not entitled to the additional pay for the period in question.

With regard to Captain Pritchett, U. S. Marine Corps, and the detachment of marines under his command:

The orders from the commandant to Captain Pritchett, dated March 21, 1909, are as follows:

"On March 22, 1910, you will report to the commanding officer, U. S. S. Supply, for temporary duty in command of the marine detachment of that vessel.

Upon the return of the Supply to this station you will resume your duties at the marine barracks."

These orders place Captain Pritchett on the Supply for duty in command of the marine detachment of the vessel, not for passage merely, but as one of the complement of the ship. He is not therefore entitled to the additional pay for shore duty beyond seas. (See decision of this office of March 27, 1907, 40 MS. Comp. Dec., 1520.) In that decision it was said:

"It is immaterial, so far as the question presented is concerned, whether the said men were temporarily or permanently detached from shore duty. The fact remains that they were detached from shore duty and assigned to sea duty, and when so detached their detail for shore duty beyond seas terminated."

The enlisted men you refer to who were detailed for duty on the same vessel are likewise not entitled to the additional pay for shore duty beyond seas and for the same reason.

SUBSISTENCE OF FOREIGN CUSTOM-HOUSE OFFICIALS WHILE PERFORMING DUTIES ON BOARD UNITED STATES VESSELS.

Foreign custom-house officials are not employees of the United States while performing their duties on board a United States vessel, and there is no authority for their subsistence at public expense while performing such duties.

Decision by Assistant Comptroller Mitchell, June 16, 1910.

Joseph Newell, master, naval auxiliary service, U. S. S. Saturn, appealed June 9, 1910, from the following disallowance made by the Auditor for the Navy Department in settlement No. 1900 D, dated March 28, 1910, of his accounts as master of the U. S. S. Saturn.

"Amount of bill for subsistence of W. E. Anteparo, custom-house officer, June 10-13, inclusive, 1909, disallowed March 28, 1910. Regulations naval auxiliary service do not authorize master to subsist custom-house officers. Four days, at $1 per day, $4.

"Amount of bill for subsistence of V. Flores Escobar, custom-house officer, from October 16-29, 1909, disallowed March 28, 1910, as in June, 1909, fourteen days, at $1, $14.

"Amount of bill for subsistence of William Ernert Anteparo, custom-house officer, for October 30, 31, and November 1, 1909, disallowed March 28, 1910, as in June, 1909, three days, at $1, $4 ($3).”

The appellant states in explanation of the items disallowed as follows:

"In accordance with orders received from the Navy Department, the Saturn was detailed to transport the United States exhibits from Panama, Republic of Panama, to Guayaquil, Ecuador. Also to return to Guayaquil and transport the exhibits back to Panama. Both times that the Saturn was at Guayaquil a custom-house officer was placed on board by the custom authorities, in accordance with the regulations for the port of Guayaquil, and these men were subsisted with the officers of this vessel."

The appropriation for naval auxiliaries is as follows (35 Stat., 756):

"Maintenance of naval auxiliaries: Pay, transportation. shipping, and subsistence of civilian officers and crews of naval auxiliaries and all expenses connected with naval auxiliaries employed in emergencies, which can not be paid from other appropriations, *

Regulations for the Naval Auxiliary Service, 1909, provide by paragraphs 76, 77, 78, and 79 for the subsistence of officers and crew of the ship and what shall be allowed the master therefor. Paragraphs 81 and 82 are in part as follows:

"81. Passengers: (a) Pilots will be subsisted on the same allowance as officers of the Naval Auxiliary Service.

"(b) Commissioned officers of the Navy, Marine Corps, and Army will pay personally for subsistence while traveling under orders on naval auxiliaries, and will be subsisted on the same allowance as officers of the Naval Auxiliary Service.

"(c) Enlisted men of the Navy and Marine Corps taking passage in a naval auxiliary will be subsisted in the same manner as members of the crew.

82. * *

*

* * * "

The master will be paid by passengers who are officers at the rate of $1 a day, as specified in paragraphs 76 and 81 (b). *

No subsistence at public expense as that charged for by the appellant in the bills under consideration appears to be provided for in the appropriation, supra; and the only persons outside the service authorized by the regulations quoted to be subsisted at public expense are pilots. They are so subsisted, presumably, because subsistence is part of the consideration of their employment and a necessary expense

for the maintenance of naval auxiliaries. Foreign customhouse officials are in no sense employees of the United States, although performing their duties on board a United States vessel, and there is no authority for their subsistence at public expense while performing such duties.

There is no evidence that the laws of Ecuador require that when its custom-house officers are placed on board a vessel of the United States said officers shall be subsisted without expense to themselves.

The Auditor's settlement is affirmed and no difference found.

PAY OF CLERK OF COURT OF CLAIMS WHO ACTS AS CUSTODIAN OF BUILDING USED BY COURT.

The act of March 4, 1909 (35 Stat., 907), providing for a "custodian of the building occupied by the Court of Claims to be paid on the order of the court," does not create a public office" within the meaning of the term "office" as used in section 2 of the act of July 31, 1904 (28 Stat., 205), and the clerk of said court, who acts as custodian, is not holding two public offices within the meaning of the latter act.

Decision by Comptroller Tracewell, June 18, 1910.

The Auditor for the State and other Departments, under date of the 4th instant reported for approval, disapproval, or modification his decision as follows:

"This office has before it for settlement the account of J. H. Mackey, disbursing clerk, Department of Justice, for the month of April, 1910, containing a voucher in the amount of $41.67 for salary of Archibald Hopkins, for the month of March, as custodian of the building occupied by the Court of Claims. This voucher has been paid from the appropriation for Salaries, Court of Claims, 1910,' act of March 4, 1909 (35 Stat. L., 907), which provides, in part, as follows:

"For pay of custodian of the building occupied by the Court of Claims, to be paid on the order of the court, five hundred dollars; and section seventeen hundred and sixtyfive of the Revised Statutes and section three of the act of June twentieth, eighteen hundred and seventy-four, shall not be applied to this provision.'

"Mr. Hopkins holds the office of chief clerk of the Court of Claims, for which he receives an annual salary of $3,500. By reason of his holding this office, does section 2 of the act of July 31, 1894 (28 Stat., 205), preclude him from receiving