* *

and

prolongation of the term beyond the period fixed by the latter, the contingency happens within the term, with the last day of the term his engagement necessarily expires, and with the expiration of his engagement the obligation to serve thereby imposed is also at an end. * *

The status of an enlisted man detained by authority of section 1422, Revised Statutes, is just such as referred to by the Attorney General as an exception to the rule that a man who enlists for a definite period is relieved of his obligation to serve at the end of the period. This law (sec. 1422) was in effect long before the act of August 22, 1912, providing for extending enlistments. It was in effect when Amante enlisted and was distinctly made a part of his contract of enlistment, and by its authority his four-year term of enlistment might be prolonged if his detention should be essential to the public interests. When a man, under the section, "reenters to serve until the return" of the vessel it is a reenlistment, but when he is detained because his service is essential to the public interests the detention is a prolongation of the four-year term and the four-year term still exists and continues to exist, in my opinion, so long as the detention is authorized by the statute.

In the case of Calixto Amante, mess attendant, which you submit, it is not shown by certificate of the commanding officer that his detention was essential to the public interests, and it was not so shown in the case decided June 13, 1913. If such certificate has been made or shall be made, I conclude, after careful consideration, that his enlistment was properly extended on December 9, 1912, and for one year from that date. If, however, it can not be certified that he was detained as essential to the public interests, or if he "reentered to serve," I am of opinion that his enlistment was not properly extended as provided by the act of August 22, 1912.

I have not overlooked the fact that it is said that on December 9, 1912, "Amante voluntarily agreed to extend his enlistment for one year from November 16, 1912, to November 15, 1913." If his voluntary extension of enlistment is to be regarded as limited by these specific dates, then it was unauthorized, because the necessary implication would be that his four-year enlistment had expired on November 16, 1912, and he could not "extend " it on December 9 following. The theory that the four-year enlistment had been extended under authority of law and his contract of enlistment until December 9 requires the one-year period of extension to date from that day, and I see no reason why it may not be so construed, the act of extension by him being regarded as done with reference to the period involved rather than the dates named.

The decision of June 13, 1913 (19 Comp. Dec., 819), is modified in accordance with this opinion.

TRANSFERS TO RAILWAY MAIL SERVICE.

The act of May 27, 1908 (35 Stat., 413), providing that railway postal clerks on entering the service shall receive the salary of the lowest grade prohibits the reentry into said service at a higher grade than the lowest of a person formerly employed as a clerk in the service who had resigned and had entirely severed his connection with the classified civil service of the Government, so that he was not eligible to reinstatement in the Railway Mail Service but must reenter the classified service through an entrance examination as an entire stranger to the service would enter.

Comptroller Downey to the Postmaster General, December 10, 1913:

I have received your letter of the 4th instant, as follows:

"Mr. C. A. Lester, now a clerk in the Kansas City post office at $1,200 per annum, has applied for transfer to the Railway Mail Service without reduction in salary.

"He entered the Railway Mail Service in 1900, was promoted through the several grades to $1,100 per annum, was transferred to the Isthmian Canal Commission, and resigned therefrom in 1907. He reentered the classified service, through examination, as a clerk and inspector in the customs service on February 13, 1911, and was subsequently transferred to the Kansas City post office.

"At the time Mr. Lester took the examination for the customs service he was not eligible for reinstatement in the Railway Mail Service, and had he taken the examination for the latter service instead of for the customs service he would have been obliged to accept appointment at the foot of the substitute roll.

"In your decision of September 19, 1913, it was held that the transfer of a regularly employed clerk in a post office of the first or second class to the position of railway postal clerk in the Railway Mail Service at a rate of pay higher than $900 per annum was prohibited by the act of May 27, 1908, making appropriations for the service of the Post Office Department for the fiscal year ending June 30, 1909.

"Under the civil-service rules it is the practice to retransfer a clerk to the Railway Mail Service above the lowest grade, if, since his transfer therefrom he has been continuously in the classified service.

"The question submitted to you for decision is, whether, in view of the fact that Mr. Lester was formerly in the Railway Mail Service, the defect caused by his separation from the classified service for three and one-half years was cured by his subsequent reentry into the classified service and his transfer to the post office to the extent of permitting his transfer to the Railway Mail Service above the lowest grade."

The act of May 27, 1908 (35 Stat., 413), provides:

"That hereafter railway postal clerks on entering the service shall receive the salary of the lowest grade *

*

If at the time he reentered the classified service Mr. Lester had been eligible to reinstatement in the Railway Mail Service a different question would be presented, but as the case stands he had en

tirely severed his connection with the classified service, and it was necessary for him to reenter the service in the same manner and upon the same footing that an entire stranger to the service would

enter.

It appears from a letter he wrote to this office under date of November 15, 1913, that Mr. Lester was appointed to the customs service at a salary of $840 per annum; was transferred to the Kansas City, Kans., post office at $1,100 per annum, and subsequently promoted therein to $1,200 per annum. He states that he was trans

ferred from the position in the customs service at $840 to the postoffice clerkship at $1,100 on his former Railway Mail Service record; the entrance salary to said clerkships being only $600 per annum.

Without questioning the propriety of the transfer thus made, which is a matter not now before me, it is sufficient for the purposes of this decision to say that the proposed transfer of Mr. Lester to the Railway Mail Service is an entry into that service, and the statute, supra, prohibits said entry at a grade higher than the lowest of said service.

REIMBURSEMENT OF EXPERT SURGEONS AND SURGEONS OF THE PENSION OFFICE FOR ACTUAL TRAVELING EXPENSES INCURRED IN MAKING EXAMINATIONS AT CLAIMANTS' RESIDENCES.

Expert surgeons and surgeons appointed by the Commissioner of Pensions under the acts of July 25, 1882 (22 Stat., 175), and May 28, 1908 (35 Stat., 419), respectively, are entitled to actual traveling expenses in going to and returning from an examination at a claimant's residence, regardless of whether such claimant's residence is within or without the corporate limits of the place of residence of the examining surgeon or of the place of regular meeting of the examining board.

Decision by Comptroller Downey, December 10, 1913:

The Auditor for the Interior Department on December 2, 1913, submitted for approval, disapproval, or modification his decision of November 29, 1913, modifying an existing construction of law, as follows:

"The question arises in the examination of the account of the chief disbursing clerk for the Department of the Interior under the appropriation For fees and expenses of examining surgeons, pensions, for services rendered within the fiscal year nineteen hundred and thirteen, $200,000.' (37 Stat., 312.)

"The disbursing clerk claims credit for payments covering traveling expenses incurred by surgeons in making examinations at the residences of certain applicants for pensions who resided either within the corporate limits of the place of regular meeting of the board of surgeons or within the corporate limits of the place of residence of the surgeon making the examination. These expenditures are approved by the Commissioner of Pensions and credit for similar payments have been heretofore allowed in this office.

"The Commissioner of Pensions was empowered by the act of March 3, 1873 (17 Stat., 576), to appoint civil surgeons to make the required periodical examinations of pensioners, and to examine applicants for pension where directed to do so by the commissioner, and the fee for such examinations, and the requisite certificates thereof in duplicate, including postage on such as are transmitted to pension agents, shall be $2

* * * "

"The commissioner was by the same act authorized 'to select a board of three duly appointed examining surgeons, who shall meet at a place to be designated by him, and shall review such cases as may be ordered before them on appeal from any special examination *The compensation for each of such surgeons shall be $3, and shall be paid out of any appropriations made for the payment of pensions, in the same manner as the ordinary fees of appointed surgeons are or may be authorized to be paid.'

*

*

"By the act of July 25, 1882 (22 Stat., 175), the commissioner was authorized to appoint surgeons and organize boards of examining surgeons, providing 'the fee for each examination, and satisfactory certificate thereof, shall be $2 to each member when made by a board and $2 when made by one surgeon.' And the commissioner was further authorized, where he deemed it necessary, 'to employ an expert, not a regularly appointed surgeon, to make the examination; and the fee for such examination shall be $5.' Provided, That when the claimant is so disabled as not to be able to present himself to a board of surgeons for examination the commissioner may order a surgeon to make the examination at the claimant's residence; and the fee for such examination shall be $2, in addition to the actual traveling expenses of the surgeon.'

"By the act of May 28, 1908 (35 Stat., 419), under which the question arises, the fees of examining surgeons were increased, it being therein provided:

"And hereafter each member of each examining board shall receive the sum of $3 for the examination of each applicant * * * and the fee shall be $3 when the examination is made by one surgeon, and the fee for each examination at the claimant's residence, provided his residence is outside the corporate limits of the place of regular meeting of the examining board or of the place of residence of the surgeon making the examination, shall be $5 in addition to the payment of the actual traveling expenses of the surgeon

* * *

"I decide that under this act surgeons are not entitled to reimbursement for traveling expenses incurred in making examinations at the residences of claimants who reside within the corporate limits of the place of regular meeting of the examining board or the place of residence of the surgeon making the examination. I also decide that expert surgeons employed under the act of July 25, 1882, supra, are entitled to a fee of $5 whether the examination is made at the home of the applicant or the office of the surgeon, but that they are not entitled to reimbursement for traveling expenses.'

Under the act of July 25, 1882, supra, a surgeon who under orders made an examination at a claimant's residence, was entitled to a fee of $2 for making such examination and to actual traveling expenses in going to and returning from the place of such examination, regard

less of whether such claimant's residence was within or without the corporate limits of the place of residence of the examining surgeon or of the place of regular meeting of the examining board.

I do not think the later act of May 28, 1908, intended in any way to modify the provision in regard to traveling expenses to be allowed a surgeon in going to and returning from an examination at a claimant's residence. It simply amended the provision relating to the fees allowed the members of the examining board and the surgeons by increasing them to $3 for each examination made

(1) Within the corporate limits of the place of the regular meeting of the examining board; and

(2) Within the corporate limits of the place of residence of the examining surgeon; and $5 for each examination made at a claimant's residence outside of both of these corporate limits.

There is no provision in the later act expressly repealing the provision for traveling expenses incurred by a surgeon in traveling to and from a claimant's residence within the above-mentioned corporate limits. This practice appears to be in harmony with the above statutes on the subject and will therefore not be disturbed.

The status of an expert, not a regularly appointed surgeon, who is employed under said act of 1882 was not changed by the later act. Under the act of 1882 he was and still is entitled to a fee of $5 for making an examination. But the auditor now holds that in no case is he entitled to actual traveling expenses incurred in going to and returning from the place of making the examination. I do not think such was the intention of Congress in framing the said act of July 25, 1882. It is true the particular paragraph which authorizes the commissioner to employ experts is silent as to their traveling expenses, but it follows immediately after the paragraph allowing actual traveling expenses to surgeons while performing similar services, and the two paragraphs must be construed together in order to arrive at the intention of Congress. It clearly was the intention to treat the surgeons and experts alike in regard to allowance of actual traveling expenses while performing their services, under orders, and they seem to have been so treated under the practice existing up to this time.

The auditor's decision is disapproved.

PURCHASE AGAINST DELINQUENT CONTRACTOR'S ACCOUNT.

Purchase and charge of excess cost against a delinquent contractor's account, held, under the circumstances of the case, not justified. See opinion. Decision by Comptroller Downey, December 10, 1913:

The Old Dominion Paper Co. applied November 29, 1913, for a revision of the settlement, October 27, 1913, of its claim (No. 520743) 42853°

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