COMPENSATION AND MILEAGE OF CONSULAR OFFICERS UPON BEING RELIEVED FROM DUTY.

A consular officer, upon the termination of the period of his official service, is not entitled to compensation or mileage while making the direct transit between the place of his post of duty and his place of residence unless the travel is made within a reasonable time after such officer is relieved from duty.

Comptroller Downey to the Secretary of State, March 4, 1914:

I have your letter of February 25, 1914, as follows:

"The department has received a communication from Mr. Samuel Smith, former American consul at Moscow, Russia, inquiring whether, if he should now return to the United States, he would be entitled to the allowance of mileage at the rate of 5 cents a mile and his salary in transit.

"Mr. Smith served as consul at Moscow from July 15, 1901, until August 11, 1908. The consular office at Moscow was raised to a consulate general by the act of Congress approved May 11, 1908, and it was not found practicable by the department to appoint Mr. Smith consul general. His services, accordingly, terminated on the date mentioned, when Mr. Hunter Sharp, the newly appointed consul general, took charge. It would not appear from Mr. Smith's communication that he has ever come to the United States since his services terminated.

"It appears to this department that it would hardly be in harmony with the spirit of the law to pay Mr. Smith salary and mileage after the lapse of so great a period of time since his retirement from the Consular Service. It is requested, therefore, that you will decide whether Mr. Smith, if he should now return to the United States, would be entitled to receive the allowance for mileage and also whether he would be entitled to salary in transit."

Under section 1740, Revised Statutes, a consular officer may receive compensation after the termination of the period of his official service, while he is making the direct transit between the place of his post of duty and his place of residence. But in order to become entitled to such compensation the travel must be made within a reasonable time after such officer is relieved from duty. (Par. 563, Consular Regulations, 1896.) These regulations have the force of law. (Sec. 1752, Rev. Stat.) From your submission it appears that a period of over five years has elapsed since Mr. Smith was relieved from duty as consul at Moscow, and therefore if the travel is now made it can not be considered as being within a reasonable time after he was relieved from such duty so as to entitle him to salary while in transit. Your first question is accordingly answered in the negative. (Bowler 1st Comp. Dec., 164.)

This argument applies with equal force to allowance of mileage while in transit. The appropriation "Transportation of diplomatic

and consular officers, 1914," act of February 28, 1913 (37 Stat., 690), is available for mileage of a consular officer in traveling to his home after being relieved from duty at his post, provided the travel is made within a reasonable time after he is relieved from duty. If the travel is made at this time no mileage is allowable, owing to the lapse of time since Mr. Smith was relieved from duty as consul at Moscow.

RECLAMATION FUND.

Moneys erroneously paid to a receiver of public moneys by a would-be purchaser of public lands and which are required by law to be refunded are not moneys received from the sale or disposal of public lands within the meaning of the act of June 17, 1902 (32 Stat., 388), creating the reclamation fund.

Practice adopted by Auditor for Interior Department in making transfers to reclamation fund approved.

Comptroller Downey to the Secretary of the Interior, March 6, 1914:

Your letter of the 20th ultimo, addressed to the Secretary of the Treasury, requesting a reconsideration of my decision of December 23, 1913 (20 Comp. Dec., 415), was handed to me on the 3d instant for such action as might be deemed proper.

After carefully considering the arguments set forth in your letter I am still of opinion that the conclusion announced in said decision. of December 23, 1913, is a correct interpretation of the law in the matter.

A large portion of your letter is devoted to an able argument of the proposition that the words "sale" and "disposal," as used in the act of June 17, 1902 (32 Stat., 388), do not mean one and the same thing. The meaning of this clause was considered in my decision addressed to you on February 25, 1914.

Το my mind this point is wholly immaterial. Moneys erroneously paid to a receiver of public moneys by a would-be purchaser of lands, and which are required by law to be refunded to said would-be purchaser, are not moneys received either from the sale or from the disposal of public lands within the meaning of the act of June 17, 1902, supra, creating the "reclamation fund." Such erroneously paid moneys are required to be covered into the general fund of the Treasury, and Congress has provided for their repayment from said fund. (Secs. 2362 and 3689, Rev. Stats.)

These repayments are not to be made from the reclamation fund as your letter would imply, but from the permanent appropriation made therefor. Neither is the amount of such repayments to be deducted

from "moneys received from the sale and disposal of public lands," but is to be excluded therefrom because moneys thus erroneously paid form no part of the fund reserved, set aside, and appropriated as a special fund to be known as the "reclamation fund," under the provisions of the act of June 17, 1902, supra.

Moneys paid to receivers by prospective purchasers in reclamation States, as well as other States, and including the amounts which are to be repaid to said purchasers and also the amounts which are to be transferred to the reclamation fund are all covered into the general fund of the Treasury. Being so covered in they can be taken out only in accordance with appropriations made by Congress— hence the necessity for the appropriation made by section 3689, Revised Statutes. But for this appropriation no repayments could be made notwithstanding the fact that the money was erroneously received and covered in. This appropriation was made not for the purpose of setting aside a specific fund from which all future refunds were to be made, but, since the moneys erroneously paid were covered into the general fund, it merely authorized repayments out of any moneys in said fund.

The contention that merely because Congress has made this appropriation for refunds the moneys actually received from erroneous sales should go to the reclamation fund is untenable. As hereinbefore stated, all the receipts are covered into the general fund, and those from erroneous sales are repaid to the persons from whom received under one appropriation and those from consummated sales are transferred to the reclamation fund in accordance with another appropriation.

Strictly speaking, the money received as the purchase price of a particular tract of land should not be transferred from the general fund to the reclamation fund until the sale is actually consummated, but I am not disposed to disturb the practice which I understand has been adopted by the Auditor for the Interior Department and the Commissioner of the General Land Office since the decision of December 23, 1913, was rendered, whereby there is reported for transfer in each periodical settlement the aggregate amount of all receipts from tentative sales in reclamation States during the period covered by such settlement less the aggregate of all repayments during said period on account of erroneous sales in said States. This practice will avoid the withholding from the reclamation fund of all receipts pending the delay incident to the final consummation of the sales and will, I think, sufficiently guard against the use of any more money by the Reclamation Service than is appropriated therefor.

I see no reason for overruling or modifying the decision in ques

SIX MONTHS' PAY GRATUITY TO A DESIGNATED BENEFICIARY OF AN OFFICER OF THE ARMY.

An informal designation of a beneficiary to receive the six months' pay gratuity provided by the act of May 11, 1908 (35 Stat., 108), as amended by the act of March 3, 1909 (35 Stat., 735), has the effect of revoking a previous formal designation, provided the evidence shows with clearness and certainty that the deceased officer or enlisted man, in his last illness, intended to and did make a new designation, and that he did, as far as it was possible for him to do so, comply with the regulations established by the Secretary of War relating to designations of beneficiaries, and payment of said pay to the last beneficiary so designated is authorized.

Comptroller Downey to the Secretary of War, March 6, 1914:

By your authority the Chief of Staff of the Army requested, the 5th instant, my decision whether the six months' gratuity pay under the act of May 11, 1908, as amended, in the case of Robert D. Goodwin, first lieutenant, Fourth United States Infantry, who died in camp at Galveston, Tex., February 5, 1914, of disease not the result of his own misconduct, should be paid to Mrs. Robert Dwight Goodwin, widow, or to Mrs. W. A. Cullop, mother, upon the facts and evidence hereinafter set forth.

The military records show that Lieut. Goodwin accepted a commission in the Army as second lieutenant October 8, 1901; was promoted first lieutenant March 26, 1907, and he died in the service February 5, 1914.

It is shown in evidence that he left surviving him a widow, Mrs. Mary Tillson Goodwin, supposed to be living at San Francisco, Cal. It is also shown in evidence that at the time of his death, Lieut. and Mrs. Goodwin were living apart and that she had instituted divorce proceedings in the superior court of the State of California in and for the city and county of San Francisco, which were still pending when he died.

On October 3, 1908, Lieut. Goodwin executed, in the presence of Maj. John C. Tillson, Fourth Infantry, commanding third battalion, a designation card in which he designated Mrs. Robert Dwight Goodwin, his wife, as the person to whom should be paid the six months' gratuity pay authorized by the act of Congress approved May 11, 1908, in the event of his death. This designation continued until the officer's last illness, just a little while before his death, when a new informal designation was made, as shown by the affidavits executed on the 11th instant of Maj. Charles G. French, Fourth Infantry; Capt. W. S. Shields, Medical Corps, United States Army; and First Lieut. W. E. Selbie, Fourth Infantry.

Maj. French says:

"That on Tuesday, the 3d day of February, 1914, he was summoned to the post hospital by W. S. Shields, captain, Medical Corps,

United States Army, for the purpose of witnessing a paper for Lieut. Robert D. Goodwin, Fourth Infantry.

"That on arrival at hospital he saw the paper duly made out for the signature of Lieut. Goodwin. That the said paper was in form and in fact a designation of Mrs. W. A. Cullop, the mother of Lieut. Goodwin, as the beneficiary of six months' pay under paragraph 1385, Army Regulations 1913, to be paid in the event of the death of the said Lieut. Goodwin.

"That the said Lieut. Goodwin was unable at the time to sign the paper on account of excessive tremors of his hand, but expressed his desire to sign the paper later when such tremors should cease. That he, Lieut. Goodwin, was subsequently unable to sign up to the time of his death. That Lieut. Goodwin was at the time the paper was under consideration perfectly clear in mind and repeatedly and emphatically signified his desire that he should sign the paper, and that his mother should be the beneficiary of his pay, as stated.

"That Lieut. Goodwin during his last illness frequently and emphatically expressed the wish that everything he possessed should be turned over to his mother, Mrs. W. A. Cullop.

"Further deponent sayeth not."

Lieut. Shields says:

"That he attended the late First Lieut. Robert D. Goodwin, Fourth Infantry, in his final illness; that on Tuesday, February 3, 1914, Lieut. Goodwin, then a patient in the post hospital, Fort Crockett, did ask the undersigned regarding the probability of his recovering from the illness, stating that if liable to die he desired to make a change in his beneficiary. On being told that his condition was extremely critical he asked to see First Lieut. William E. Selbie, Fourth Infantry; that Lieut Selbie visited Lieut. Goodwin at the post hospital and at his request made out a new beneficiary card, making Mrs. W. A. Cullop, mother of Lieut. Goodwin, his beneficiary; that Lieut. Selbie, in company with Maj. Charles G. French, Fourth Infantry, and the undersigned, did take the beneficiary card to Lieut. Goodwin at the post hospital, and that Lieut. Goodwin appeared to be extremely anxious to sign said beneficiary card, assigning his six months' pay to Mrs. W. A. Cullop, and that his mentality was perfectly clear; he was unable to do so on account of the excessive tremor of his hands; that the signing of the card was delayed in the hopes that the tremor would stop, but that it grew progressively worse, thus preventing the beneficiary card from being signed; that Lieut. Goodwin repeatedly expressed his desire to do so. Further deponent sayeth not."

Lieut. Selbie says:

"Some days before Lieut. Goodwin's last illness and while he was in perfect health I had an intimate conversation with him in which, among other things, he stated that he wanted to change his designation of beneficiary in the War Department from his wife to his mother. He told me his reasons for so doing, principal among them being the fact that his wife had made ugly, unfounded charges against him and was then taking action in the courts against him looking for a divorce. He was very positive in his assertions and