Under Class VII the portion of the guaranty deposits covering tribal lands, which are deposited by the commissioner to the credit of the tribe, are so disposed of that unless the commissioner rendered an account thereof there would be no account, and these moneys should accordingly be taken up in his accounts.

The checks, etc., for the portion of the guaranty deposits covering allotted lands are understood to be cashed by the commissioner and the proceeds transmitted to the superintendent having jurisdiction of the lands.

Although the superintendent makes final disposition of the moneys and must render an account, the commissioner changes the form of the remittance as received by him and transmits to the superintendent his official check instead, and the transaction must be shown in the commissioner's account in order that the proper amounts received and transmitted may be debited and credited.

Referring back to the act of 1898, supra, I do not think it requires that the Commissioner of Indian Affairs be considered a custodian of all funds coming into his hands the same as an Indian agent. The commissioner is responsible for the remittances coming into his office, but it does not follow that an account to be audited must therefore be rendered by him, and in so far as a contrary effect has been given to the decision of December 13, 1900, supra, or that decision is in conflict with the views herein expressed, it is overruled.

HEAT ALLOWANCES OF ARMY OFFICERS.

The act of March 2, 1907 (34 Stat., 1167), authorizes such fuel allowances only as are actually necessary to heat the quarters occupied by an officer not to exceed the number of rooms prescribed by law as his authorized allowance of quarters.

Regulations prescribed by the Secretary of War which purport to authorize payment of heat allowances in excess of those authorized by the act of March 2, 1907, supra, are invalid and of no effect.

The "table of allowances" set forth in paragraph 1060, Army Regulations, 1910 (1044, A. R., 1913), can not be accepted as a basis for payment of heat allowances of officers occupying quarters other than public.

Officers occupying quarters other than public, not heated by a separate plant, can be allowed no heat allowance whatever in the absence of satisfactory evidence showing the quantity of fuel" actually necessary" to heat the quarters actually occupied.

An officer occupying quarters other than public consisting of a greater number of rooms than his rank entitles him to occupy will be allowed as his heat allowance only such portion of the fuel actually used to heat such quarters as the number of rooms which he is legally entitled to occupy as quarters bears to the whole number of rooms actually occupied.

Comptroller Downey to the Secretary of War, January 31, 1914:

On the 23d day of September, 1913, a decision of this office was rendered, on a submission by the Auditor for the War Department,

which, for reasons therein stated, was not final as to the questions involved, and in that connection I now have your letter of December 31, 1913, transmitting, with your approval, a report made by the Chief, Quartermaster Corps, bearing on the subject.

The question presented was as to the validity of certain Army regulations authorizing the payment of designated amounts as the heat allowance of officers occupying quarters other than public, not heated by a separate plant or for which it is impracticable to furnish fuel in kind.

The Auditor's submission of an original construction of a statute for approval, disapproval, or modification was as follows:

"In the examination of the accounts of disbursing officers of the Quartermaster Corps a question arises as to the legality of pars. 1052 and 1060 of the Army Regulations of 1910.

"Par. 1060 prescribes the quantity of fuel, measured in cords of oak wood, to which each officer occupying a number of rooms to which his rank entitles him, is entitled to draw in kind, and furnishes the basis to commute such fuel allowance, when not drawn in kind or measured by a separate heating plant.

"Par. 1052 reads as follows:

"1052. Each officer or noncommissioned officer entitled to and occupying public quarters, or quarters other than public which are heated by a separate plant, will be furnished at the expense of the United States with the quantity of fuel set forth in the table of allowances, paragraph 1060. This allowance may be considered accumulative within a fiscal year, and any excess of allowance appearing as overdrawn by an officer at the end of a fiscal year will be paid for at contract price. Where an officer or noncommissioned officer is occupying quarters other than public, not heated by a separate plant, or for which it is impracticable to furnish fuel in kind, the Quartermaster's Department will pay the owner or authorized agent of such quarters for the heat at the rate of $4 a cord for the fuel allowance for the number of rooms to which the rank of the officer or noncommissioned officer entitles him as set forth in the table of allowances, paragraph 1060.'

"This regulation was amended by changes in Army Regulations No. 6, dated June 22, 1912, by adding the following:

"Where an officer or noncommissioned officer on detached service in a foreign country occupies quarters other than public, the Quartermaster's Department will pay the owner or authorized agent of such quarters for the heat furnished in accordance with the prescribed allowance for the number of rooms to which the rank of the officer or noncommissioned officer entitles him, at the local rates at the place where he is serving.'

"Prior to March 2, 1907, the Army Regulations provided for the sale of fuel to officers for the authorized number of rooms occupied as quarters, as provided in paragraph 1051 of the Army Regulations of 1904. Paragraph 1043 of the Regulations of 1904 reads as follows:

"1043. Officers may purchase from the Quartermaster's Department the fuel actually needed for their own use. For the quantity allowed them in the table contained in paragraph 1051 they will pay

at the rate of $3 per cord for standard oak wood, or the equivalent thereof in other kinds of fuel as determined by the Quartermaster General. For any additional quantity they shall pay the contract price. Payment will be made at the time of sale.'

"The Army appropriation act of March 2, 1907, under the appropriation Barracks and quarters,' provided for an increase in the number of rooms to which each officer was entitled as quarters (34 Stat., 1168). The same act, under the appropriation for 'Regular supplies, Quartermaster's Department,' provided, That hereafter the heat and light actually necessary for the authorized allowance of quarters for officers and enlisted men shall be furnished at the expense of the United States, under such regulations as the Secretary of War may prescribe.' (34 Stat., 1167.)

"Immediately after the passage of this act, paragraph 1051 of the Army Regulations of 1904 was amended by General Order No. 61, dated March 22, 1907, to conform therewith, showing the increased number of rooms to which each officer was entitled and increasing the quantity of fuel to which each officer was entitled. Paragraph 1043 of the Army regulations of 1904 was also amended by General Order No. 61, dated March 22, 1907, to read as follows:

"1043. Each officer or noncommissioned officer entitled to and occupying public quarters, or quarters other than public which are heated by a separate plant, will be furnished at the expense of the United States with the quantity of fuel set forth in the table of allowances, paragraph 1051. This allowance may be considered accumulative within a fiscal year, provided that the accumulated allowance shall at no time be exceeded. For any additional fuel the officer will pay contract price, payment to be made at the time of sale. Where an officer or noncommissioned officer is occupying quarters other than public, not heated by a separate plant, or for which it is impracticable to furnish fuel in kind, the Quartermaster's Department will pay the owner or authorized agent of such quarters for the heat at a rate of $4 per cord for the fuel allowance for the number of rooms to which the rank of the officer or noncommissioned officer entitles him as set forth in the table of allowances, paragraph 1051.'

"It will be noted that paragraph 1043 of the Army Regulations of 1904 provides for the sale of fuel to officers, and fixes the rate to be charged therefor on the basis of $3 per cord for standard oak wood; and that immediately after the passage of the act of March 2, 1907, authorizing the furnishing of heat at the expense of the United States, the value of such wood was fixed at $4 per cord, thereby increasing the value of the officer's allowance for heat 333 per cent, as well as increasing the quantity of fuel proportionate to the increase in the number of rooms to which the officer was entitled.

"The act of March 2, 1907, supra, authorizes the furnishing of the heat and light actually necessary for the authorized allowance of quarters for officers and enlisted men,' and further provides that such heat and light shall be furnished under such regulations as the Secretary of War may prescribe'; but nowhere does such law authorize the Secretary of War to prescribe regulations as to the quantity of heat and light that shall be furnished, that being fixed by the law as that actually necessary.

"It is apparent that when officers are in receipt of commutation of quarters and actually occupying quarters which are not heated by a separate plant, it is necessary to fix upon some basis by which this allowance shall be paid. The law specifically states that they shall be furnished the heat actually necessary; and any regulation providing for commuting the value of such heat should be based on what experience has determined as a reasonable amount for the number of rooms which are actually occupied, not exceeding the officer's allow

ance.

Paragraphs 1052 and 1060 of the Army Regulations of 1910, taken together, authorize a fuel allowance which it is apparent is largely in excess of that which is necessary to heat the authorized allowance of quarters for officers of the Army. This may be illustrated by taking the allowance for a lieutenant colonel stationed here in Washington. An officer of this rank is entitled to six rooms, and the maximum fuel allowance for six rooms in the latitude of Washington is 51 cords of oak wood, or 38.7 tons of anthracite coal. The common experience of householders here in the District of Columbia demonstrates that no such quantity of fuel as that specified is required for heating and cooking purposes for living quarters_consisting of six rooms. In some cases it is found that officers do draw approximately their full allowance of fuel, but in such cases the officers are found to be occupying quarters consisting of rooms largely in excess of the number authorized by the act of March 2, 1907, supra. I am informed at the office of the Supervising Architect that the amount of fuel required to heat public buildings in the latitude of Washington is computed on the basis of one pound of anthracite coal per cubic foot per season, or in the case of dwellings it is computed on the basis of one ton of anthracite coal for each room per season, or six tons for six rooms.

"The commuted value of the fuel allowance of an officer of the rank of lieutenant colonel as above given, and the amount paid to the officer's landlord, when the officer is occupying six or more rooms not heated by a separate plant, is $204. The actual value of six tons of anthracite coal, delivered here in Washington, would approximate $45. Allowing a reasonable amount for gas or other cooking fuel, it is apparent that the total cost of fuel for quarters of six rooms here in Washington would ordinarily not exceed $75 per year. "While this office has no complete and specific data as to the kind of fuel used and cost thereof at the various Army posts throughout the United States, yet from the data which has been obtained from disbursing officers' accounts, it is apparent that under paragraphs 1052 and 1060 of the Army Regulations of 1910, the value of the allowance of fuel for officers' quarters is at least double that which is actually required anywhere in the United States for the number of rooms such officers are entitled by law to occupy.

"Paragraph 1052, of 1910, as amended by C. A. R. No. 6, of June 22, 1912, provides that the value of the fuel allowance of an officer serving abroad shall be based on the local rates at the place where serving; hence it follows that the allowance which has been made to such officers since that change in the regulations has been based on the value of oak wood at the several foreign stations. As illustrating this I have before me vouchers in the accounts of C. C. Lansing, Capt., 4th F. A., A. Q. M., military attaché at Madrid,

Spain, for payments made to Pedro de la Gala for the fuel allowance of Capt. Lansing during the months of December, 1912, and January and February, 1913, which are based on the rate of .0256 centimes per pound, or at the rate of slightly in excess of $18 per cord, the total amount thus paid being $78.88 per month.

"It is apparent from the price specified as the value of oak wood that oak wood is not a common form of fuel in Madrid, Spain. This basis would give this officer, who is entitled to four rooms, a total of $739 for his fuel allowance per year. That this amount is in excess of that actually necessary is so apparent as to need no argument.

"It has been the practice under the regulations of 1910, cited above, to pay the landlord of an officer receiving commutation of quarters, and who is occupying quarters not heated by a separate plant, the full commuted allowance for the number of rooms to which he is entitled, in monthly installments. Under the decisions of the Comptroller of the Treasury of May 26, 1913, and July 30, 1913, this payment is now restricted to the heat for the number of rooms actually occupied by the officer, not exceeding the number authorized by law. The question which has naturally arisen in connection with the amendment of Army Regulation No. 1052 is whether such regulation is a legal one, which the Secretary of War is authorized to promulgate. If the Secretary of War may by regulation legally increase the value of a cord of oak wood from $3 to $4 for officers serving in the United States, and to $18 for officers serving in Madrid, Spain, then there will appear to be no reason why he might not increase that value to $100 per cord. If the regulation prescribing an allowance of 5 cords of wood per month to heat the quarters of a lieutenant colonel here in Washington, for eight months in the year, is legal, then the same authority may issue a regulation authorizing an allowance of 100 cords per month.

"The act of March 2, 1907, supra, provides that officers shall receive the heat allowance actually necessary for their authorized allowance of quarters; and sec. 1765 of the Revised Statutes provides:

"No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation there for explicitly states that it is for such additional pay, extra allowance, or compensation.' "It is apparent from what has been said that the regulations quoted give to officers an allowance for fuel which is more than that actually necessary for heating their authorized allowance of quarters, and to that extent is an extra allowance or compensation, which is prohibited by sec. 1765, R. S. The question that is here raised is as to the legality of the regulations which have been issued, granting this allowance. It is conceded that it is ordinarily within the province of the administrative officers to issue necessary regulations, in aid of or to carry out the provisions of a statute. It is apparent that some regulations are necessary in aid of the act of March 2, 1907; but when such regulations are so framed as to give officers an allowance for fuel in excess of that actually necessary for their